What are the conditions for prior use of a trademark?

Registering a trademark for which others have prior rights is essentially an infringement. Therefore, even if the registration is passed, it can be revoked. So what are the conditions for the prior right to use a trademark? The editor of Legal Savior Network has compiled the following content to answer your questions. I hope it will be helpful to you.

What are the conditions for prior use of a trademark

1. The fact that the trademark has been used before the application date of others' registered trademark

This is a requirement for the User's usage time. If this condition is not met, there will be no "prior Use", it cannot generate prior use rights and use this as a defense for trademark infringement. It should be noted that the use is not limited to the use by the existing user. If there has ever been a business succession relationship, the use by the existing user as the successor can certainly be used as the use under these conditions. The successor's previous use shall be deemed to be the existing user's use. In other words, the time of use of an earlier-used trademark shall be based on the time of first commercial use of the trademark.

2. The previously used trademark is identical or similar to the registered trademark, and the goods or services used are the same or similar

Under normal circumstances, if the previously used trademark and the registered trademark are not identical or similar in trademark design, or the goods used are not identical or similar goods, the user has the right to continue to use or even apply for registration of the trademark. If the previously used trademark and the registered trademark constitute similar trademarks used on the same or similar goods, in accordance with the general provisions of my country's "First to Apply and Registration Principles", the unregistered trademark shall not continue to be used, otherwise it will constituteInfringement of registered trademark rights. However, the law should maintain integrity and should not prohibit or sanction fair use. Therefore, it is necessary to create an exception under the above principles, that is, the right to prior use of a trademark.

3. The prior user must have Continuous use of the trademark on the Internet

The so-called continuous use means It refers to the prior user’s continuous and uninterrupted use of the trademark on its goods. If the prior user has used the trademark before the filing date of the trademark registered by others, but discontinues the use without justifiable reasons, he shall not continue to use the trademark. The reasons are:

First, the trademark was used earlier As an exception to the registration principle, the purpose of rights is to protect the interests of the prior user. If the prior user's use has been interrupted, he no longer enjoys any interest in the trademark and there is no need for protection.

Second, if there is only a fact of use, The prior user can still re-use the trademark after others, which will fundamentally shake the trademark registration system and go against the protection of the interests of trademark registrants.

Third, allow re-use after interruption of use , is not conducive to maintaining normal fair competition relations and safeguarding the interests of consumers. The so-called legitimate reasons refer to interruption of use that is not caused by the user's subjective reasons. If there is a legitimate reason to interrupt the use, it will not be deemed to be a lack of continuous use. If the goods used for the previously used trademark are seasonal, the use of the trademark will be suspended.

4. Prior use must be forGoodwill

Goodwill in civil law usually refers to non- Unaware through no fault of his own.

The goodwill of the prior user, first of all, refers to When the user uses a certain mark as a trademark through no fault of his own, he does not know that others have actually used a trademark that is identical or similar to the mark on the same or similar goods. Secondly, since the registration is limited to the goods or services for which it is approved, when the registered trademark is formed, the prior user uses a trademark that is identical or similar to the trademark on non-similar goods or services, which has the consequences of misleading the public. , then the use by the prior user cannot be said to be “in good faith”. When the pattern of a registered trademark constitutes a work within the meaning of copyright law, the prior user uses the pattern as a trademark for non-similar goods or services, unless the prior user can prove that it has legitimate rights to the pattern used. Nor can it prove that its use was made in good faith.

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