Prior rights are the various rights and lawful interests that another party has lawfully acquired or enjoys before the filing date of a trademark, including prior trademark rights as well as other civil rights such as trade name rights, name rights, portrait rights, copyrights, and design patent rights. Article 32 of the Trademark Law provides that an application for trademark registration may not prejudice another party's existing prior rights.
Prior Trademark Rights
This is the most common form of prior right, including trademarks previously registered on identical or similar goods, trademarks previously preliminarily approved, and trademarks previously applied for with an earlier filing date. Under Articles 30 and 31 of the Trademark Law, a later application that conflicts with them is rejected. Protection for well-known trademarks may further extend to dissimilar goods.
Trade Name Rights (Enterprise Name Rights)
An enterprise name or trade name previously registered and used by another party that has acquired a certain degree of influence constitutes a prior right. Applying to register as a trademark wording identical or similar to another party's trade name, where this would readily cause public confusion, prejudices the prior trade name right and may be rejected or declared invalid.
Name Rights and Portrait Rights
Registering another person's name (including a pen name, stage name, or translated name) as a trademark without permission, or using another person's portrait as a trademark without authorization, infringes name rights and portrait rights. Protection of famous persons' names is especially strict, and squatting on a famous person's name may simultaneously be held to be bad-faith registration.
Copyrights and Design Patent Rights
If the applied-for mark plagiarizes a work in which another party holds copyright (such as stylized lettering, a pattern, or a cartoon image), or conflicts with another party's valid design patent, it likewise constitutes prejudice to a prior right. For a self-designed logo, take care to preserve the creative drafts to prove the source of your own rights.
Trademarks Previously Used with a Certain Degree of Influence
The second half of Article 32 of the Trademark Law prohibits preemptively registering, by improper means, a trademark that another party has already used and that has acquired a certain degree of influence. Although such unregistered trademarks carry no registration right, the goodwill formed through use is protected by law and is an important basis for combating squatting.
Legal Consequences of Prior Rights
At the application stage, a trademark that prejudices prior rights may be rejected or opposed after preliminary approval publication; after registration, the prior rights holder may petition within the statutory time limit for the registered trademark to be declared invalid. For bad-faith registrations, the owner of a well-known trademark is not subject to the time limit.
Pre-Filing Screening Suggestions
Beyond the trademark database, you should also search enterprise name registration information, the names of famous persons, images of famous works, and the like, to confirm that the mark does not fall within the scope of any prior right; for a commissioned logo design, obtain a written agreement on the ownership of the copyright.
The practical judgment behind these concepts must be joined to the individual case; before proceeding, you can book a targeted analysis with a record-filed agent on MyTMBee.