Prior use right of trademark

Overview

The prior use right of a trademark is an infringement of the trademark right when the trademark is known at the time of application for trademark registration as a result of using the trademark for the purpose of unfair competition before the application for trademark registration. It is the right not to be.

 

 

Article

Prior to the application for trademark registration of another person, the trademark or similar trademark was used for the designated goods or designated services related to the trademark registration application or similar goods or services in Japan for the purpose of unfair competition. As a result, when the trademark is widely recognized among consumers as indicating the goods or services related to its own business at the time of filing the application for trademark registration, the person shall continue to use the goods or services. If you use the trademark, you have the right to use the trademark for the goods or services. (Article 32 of the Trademark Law)

Commentary

Requirements for the prior use right of a trademark

・The trademark was used before the application for trademark registration of another person.
・Not for the purpose of unfair competition.
・The trademark used is well known.
・Continue to use the trademark for the product / service.

 

Not the purpose of unfair competition

If another person acquires a trademark right and the trademark becomes well known, and if he / she tries to make a profit by using it in a way that freerides on the well-knownness of the trademark, it is regarded as the purpose of unfair competition. increase.

However, it is presumed that there is no purpose of unfair competition if normal use is continued before the application of another person.

 

Well-known requirements

Timing requirements

It must be known at the time of application for trademark registration.
If it becomes known after the application for trademark registration, the prior right to use the trademark will not be granted.

If the trademark was known before the application for trademark registration but was not well known at the time of application for trademark registration, the prior right to use the trademark will not be granted.

 

Degree of familiarity

It is understood that it is not necessary to make it known all over Japan, and it is sufficient if it is made known in one region.

However, it is difficult to prove well-known in this region.

Therefore, we recommend that you apply for trademark registration instead of relying on the prior right to use the trademark.

 

 

Evidence to prove well-known

Supporting the start time and period of use

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