Prior rights is the legal concept used in the first half of Article 32 of the Trademark Law: an application for trademark registration shall not harm another's existing prior rights. Under the official guidelines, it refers to rights or interests already enjoyed and lawfully subsisting before the filing date of the trademark application. For small and medium-sized enterprises, the value of understanding this concept lies at both ends: on the one hand, one's own trade name, logo, or packaging design may constitute someone else's prior rights and need to be avoided in advance; on the other hand, others may infringe prior rights belonging to you.
Legal Basis
Article 32 of the Trademark Law provides: an application for trademark registration shall not harm another's existing prior rights, nor preemptively register by unfair means another's trademark that has already been used and has gained a certain influence. Article 9 of the Trademark Law also provides that a trademark applied for registration shall have distinctive features, be easy to identify, and shall not conflict with prior lawful rights obtained by others.
What Types of Prior Rights Are Included
According to the Guidelines on Avoiding Conflicts with Prior Rights in Trademark Application, Registration and Use issued by CNIPA, the prior rights referred to in Article 32 include:
- Trade name rights: the trade name in an enterprise name, as well as abbreviations of enterprise names that have established a stable correspondence with the enterprise; the names of public institutions and individual businesses are applied by reference;
- Copyright: literary, musical, artistic, photographic, and graphic works, commonly seen in logos, packaging designs, and illustrations;
- Design patent rights: prior designs whose publication date of grant announcement precedes the filing date of the contested trademark;
- Name rights: including real names as well as pen names, stage names, and translated names with a certain degree of fame that have established a stable correspondence with a natural person;
- Portrait rights: applying to register another's portrait as a trademark without permission;
- Geographical indications;
- Product or service names, packaging, and trade dress with a certain influence;
- Other lawful prior rights and interests deserving protection.
Particular attention: prior trademark rights are not on this list. Conflicts with prior registered trademarks are handled under Article 30, and conflicts with prior applications under Article 31—each has its own independent channel.
Proof Points
Asserting a prior right usually requires a three-layer chain of evidence:
- Existence of the right: for trade name rights, provide the business license or enterprise registration information; for copyright, provide evidence of publication and completion of the work, supplemented if possible by registration certificates; for design rights, provide the patent grant announcement; for name rights, provide materials on fame and stable correspondence;
- Priority in time: the right arose before the filing date of the contested trademark;
- Harm: registration and use of the contested trademark is likely to cause the relevant public to mistake its goods for those of the rights holder or to believe a specific connection exists.
For trade name rights, examination also comprehensively considers the originality of the trade name, its fame, and whether the parties' goods or services are similar. The more original and famous the trade name, the more easily harm is found.
Remedial Paths
When prior rights are infringed, the proceeding can be chosen according to timing:
- Trademark not yet registered: file opposition within three months of the preliminary approval announcement (Article 33)—the lowest-cost route;
- Trademark already registered: request invalidation under Article 45 within five years of registration. Beyond five years, only absolute-grounds paths or other remedies remain.
Practical Points and Common Pitfalls
One pitfall is equating prior rights with prior trademark rights. Many enterprises take their own prior registered trademark to assert Article 32—the direction is wrong; they should proceed under Article 30 or 31.
Another pitfall is believing a registration certificate guarantees victory. A registration certificate only resolves the existence of the right, not proof of priority in time or harm; moreover, copyright registration is voluntary and involves no examination of originality—in practice, corroboration such as published materials, original design drafts, and first-publication records is still needed.
The two most practical actions for an enterprise: first, before applying for a trademark, run a prior-rights check using the trade name and keywords of principal goods, covering enterprise credit information, patent searches, and publication channels for works; second, centrally archive the original drafts, publication records, and registration certificates of your own logo and packaging designs—they will be used repeatedly in enforcement and defense.
The application of these concepts in practice varies in detail; before proceeding, you may consult a registered agent via MyTMBee for targeted analysis.