Legitimate Protection Of Unregistered Trademark

There exists legal protection of unregistered trademark only in the country applyingtrademark-registering system. The question of legal protection of unregistered trademarkdidn’t be paid attention to in theory and became one question being probed into in the thirdrevision of Trademark Law in China due to reflecting of trademark theory and focusing onscrambling for registering trademark in China. Perfection of unregistered trademark’s legalprotection must be based on certain theory. Any reasonable legislation is the result ofreasonable thought deriving from the realization of the nature and the objective rule of things.Nowadays, in theory, necessity of unregistered trademark’s legitimate protection focuses onthree questions, the theoretical foundation of unregistered trademark’s legitimate protection,the range of unregistered trademark’s legitimate protection, and the method of unregisteredtrademark’s legitimate protection. And the probing into said questions must base on the natureof unregistered trademark. However, property thought in traditional trademark law, in whichbasic protection mode of trademark is granting trademark right, consider the trademark as asymbol and consider trademark law as quasi-property law. In accordance with this thoughtlogic, there will not exist appropriateness and mode of legal protection of unregisteredtrademark, and there appears two new questions at the same time, one is absolute tendency oftrademark right, the other is one-sided understanding of trademark use and trademarkgoodwill. The reason of resulting these questions is not to think the question from therelationship of trademark owner and consumer and other competitor as well but merely tofocus on the relationship of people and trademark symbol to discover the true market meaning.Thus, there need origination of researching channel to study the question of unregisteredtrademark’s legal protection. The thesis tends to research the trademark law in empiricalmethod and argue that Saviny’s legal nexus theory making the civil law empirics can be usedin the research of trademark law. Under Saviny’ s theory, we can have a comprehensiveunderstanding of the content of trademark right if we put the trademark right into trademarklegal nexus. We will find we will not only consider trademark owner to measure trademarkuse if we interpret the foundation of trademark legal nexus as trademark use legal nexus andcommercial transaction relationship. But this thinking method can not be directly applied tothe analysis of unregistered trademark, because general unregistered trademark and unregistered trademark having considerable influence can not be granted trademark right. Wewill find the key from the basic social relationship of trademark legal nexus to adhere toempirical method. The thesis believe the actual basis of trademark existence is thecommercial transaction. The relationship of trademark owner and consumer in the trademarklaw is the commercial transaction relationship. Anti-unfair competition law maintain regularcommercial transaction relationship of trademark owner by prohibiting other operator’ unfaircompetition. So the thesis persists in researching unregistered trademark’s legal protection inthe angle of commercial transaction. The fundamental difference between the angle ofcommercial transaction and the angle of trademark’s property thought is that the essence ofthe former is the angle of the relationship between people, and the essence of the latter is theangle of the relationship between people and thing. The angle of commercial transactionconsider the trademark as a kind of market information aiming to effect and control marketaction and consider the trademark legal nexus having property basis and having competitionbenefit basis at the same time, and the thesis consider trademark law as not only propertylaw but also transaction law in market economy. The thesis make an overall study on legalprotection of unregistered trademark from the new angle of commercial transaction and thenew ideas concerning trademark and trademark right and trademark law deriving from theangle.The first chapter mainly probes into the theoretical foundation of unregistered trademark.Firstly, the first chapter probes into the difference between the market system of unregisteredtrademark and legal system of unregistered trademark from the angle of commercialtransaction. Unregistered trademark is people’s free choice being respected, which means theappropriately legal intervention in unregistered trademark that be named as thefunction-sharing of market and law by Japanese Professor田村善之in intellectual propertylaw and be named as the differentiation of market system and legal system by the author.Accordance the standpoint, the thesis insists on the limitation of legal protection and opposesto legal omnipotence and make limitation on unregistered trademark directly securing legalprotection. Namely, rather unregistered trademark in narrow sense than trademark symbol inbroad sense can be protected, and those unregistered trademark beyond the legal protectionshall be regulated by the market system.Secondly, the thesis expounds the ethical justification of unregistered trademark’ legalprotection. The thesis tends to seek the ethical justification of unregistered trademark’ legal protection in jurisprudence of natural law and to probe into the question in the method offundamental theory of natural law than in the approach of any material theory of natural law.The thesis points out that the jurisprudence value of trademark law is freedom and orderbased on the freedom, and that unregistered trademark is the expression of people’s freedom.Then the thesis argues that respect for people’s freedom is ethical justification of unregisteredtrademark’ legal protection and free usage of unregistered trademark by the trademark owneraims to safeguard consumer’s right. Particularly, for the purpose of safeguarding consumer’sright, the free competition of operator using the unregistered trademark and prohibition ofunfair competition against unregistered trademark forfeiting. The viewpoint conforms notonly to natural state of market but also to the philosophy of natural law and clarifies wrongideas about unregistered trademark. For example, the viewpoint can interpret whyadministrative management standard always exists in Trademark Law in China, the reason isthat management function of unregistered trademark can not be realized.Thirdly, the thesis expounds the real reasonableness and material justification of legalprotection of unregistered trademark from the angle of trademark usage and trademarkgoodwill protection. Trademark usage and trademark goodwill protection play a key role inlegal protection of unregistered trademark. Trademark usage is the material requirement ofunregistered trademark existence and of being protected. Trademark goodwill, which comesfrom trademark usage conforms to the requirements of legal material justness and is thematerial justification of legal protection of unregistered trademark, is the direct foundation oflegal protection of unregistered trademark. The essence of trademark usage is market behaviorto effect and control the market by trademark instrument. The thesis adopts the interestrelationship concept of trademark goodwill, the said concept expression is consistent with theangle of commercial transaction. According to this expression, trademark goodwill is not onlya material interest but an expectant interest, e.g. the goodwill of unregistered trademarkhaving certain influence and unregistered well-known trademark is a material interest,whereas the goodwill of trademark having been applied but not yet used and generalunregistered trademark are only expectant interest but not having material interest.Fourthly, the thesis expounds the consistence in protection purpose of modern trademarklaw and modern anti-unfair competition law by analyzing the purpose of unregisteredtrademark protection. One-sided opinion may appear when we think the protection purpose ofunregistered trademark either from the angle of mere trademark law or from the angle of anti-unfair competition law. The thesis argues that there exists interest consistence among thetrademark owner and consumer and the public and three purposes of trademark law have theequally important situation. For unregistered trademark, harmonization of three purposes oftrademark law aims to seek a framework including three interests to be the foundation ofanalyzing trademark legal nexus. In the long run, trademark is considered as quasi-propertyright, creation and content and alteration of trademark right is analyzed from the standpoint ofcontrol denoting the relationship of people and thing. The thesis argues that we can find theessence of unregistered trademark only by analyzing the relationship among trademark ownerand consumer and other competitor.Whereas the framework of the existence of trademark owner and consumer and othercompetitor is the foundation of unregistered trademark existence and is commercialtransaction,. Without transaction, without trademark. The thesis further argues that withoutmarket without trademark. Trademark is a channel of market transaction, and trademark rightis the channel of effecting people’s freedom. What trademark means lies not in property but ineffecting people’s behavior, trademark means market-controlling. We can respond to the threepurposes of unregistered trademark protection and harmonize the three purposes ofunregistered trademark protection legislation only by studying unregistered trademark fromthe standpoint of commercial transaction.The second chapter probes into the categorization of unregistered trademark to make therange of unregistered trademark protection clear. Systematic unregistered trademarklegislation, which means categorization of unregistered trademark, is still the justification ofideal unregistered trademark protection. Categorizing unregistered trademark is the object ofunregistered trademark categorization. For the purpose of studying unregistered trademark,we limit unregistered trademark needing to be categorized to those adhering to the legalrequirements. Although the majority of overall trademark is composed of unregisteredtrademark, the attention paid to which does not yet meet with practical requirement either intheoretical study or in practice. Unregistered trademark exists naturally and need not therequirement of being unregistered trademark. Thus, the thesis then expounds the requirementsof categorizing unregistered trademark. As the classification of unregistered trademark isconcerned, the thesis adapts classification of general unregistered trademark having certaininfluence and unregistered well-known trademark and argue that the said classificationreflecting the protection foundation of unregistered trademark is reasonable, the expression of having certain influence can show market instrument meaning of unregistered trademark. Atlast, the thesis assert that unregistered trademark can be classified into general unregisteredtrademark and special unregistered trademark in accordance with form existence, and also itcan be classified named unregistered trademark and unnamed in accordance with whether ornot having specific name, the thesis expounds the meaning of the viewpoint.The third chapter expounds the protection of unregistered trademark in Trademark Lawin China. First, expounding non-execution of general unregistered trademark right, the thesisassert that overdue intervention with unregistered trademark does not comply with freecompetition principle in the market economy, and unqualified protection means occupationprotection of trademark symbol, collateral protection of general unregistered trademark in theTrademark Law in China aims to prohibiting fraud. Second, the thesis analyzes the conditionand method of unregistered trademark having certain influence in other countries’ legislation,and then expounds the protection mode of unregistered trademark right having certaininfluence and the protection mode of prior use right, emphatically compares and evaluates theprotection mode in America and that in Germany. The thesis points out that the commonnessbetween the said protection mode is legal recognition of unregistered trademark havingcertain influence and the difference between the said protection mode is the latent philosophybasis. As contrast to the protection mode of trademark right, prior use protection mode is inshort of logical justification, because prior use protection mode is created for resolvingconflict between unregistered trademark and registered trademark from the start and is notcreated for the benefit of unregistered trademark owner, which embodies rather thewillfulness to employing legal instrument than perusing the truth, all of which reflect prioruse protection mode can not express the material meaning of trademark, effecting andcontrolling the market behavior. The benefit of trademark derives from the competitionamong the owner of trademark and consumer and other competitors. Prior use protectionmode will give rise to the break of trademark owner and consumer and the separation ofconsumer and results that unregistered trademark can not embody the nature and meaning oftrademark completely. As contrast to the protection mode of trademark right, prior use right isnot property right and can not become the object of transaction. Under the rule of Coasetheorem, definition of property right is the prerequisite of commercial transaction, withoutproperty right, without transaction rule. It is generally believed that prior use right can not betransferred and the transaction rule in trademark law does not have the meaning of transaction rule. The thesis assert that except for embodying the respect for examining agencies, prior useprotection mode means nothing for unregistered trademark having certain influence. Asunregistered well-known trademark is concerned, the thesis concludes the alteration ofprotection basis, that is honest and credit principle in the early stage and the value ofefficiency supremacy and exclusiveness tendency in the present, and analyzes and evaluatesthe anti-dilution protection of unregistered well-known trademark, then the thesis assertsslowing down the anti-dilution judicial practice in the state of non-alteration of theory andlegislation.The fifth chapter expounds the protection of unregistered trademark in the civil law andin the copyright law. First, as civil law protection is concerned, the thesis particularly analyzesa prevalent viewpoint that general unregistered trademark is a legitimate interest and beprotected in the civil law, the thesis points out that the protection of unregistered trademark inthe civil law does not mean to protect unregistered trademark owner’s interest but means torespect the freedom of general unregistered trademark owner. Owing to its abstractness, theprotection can be applied by combining with concrete prescriptions. It has been proven that itis false that having some right after using unregistered trademark which comes from the labortheory of Locke. General unregistered trademark user has civil and commercial freedom. Theopinion of considering general unregistered trademark as interest naturally accruing willdirectly jeopardize market freedom. As for the protection of unregistered trademark incopyright law, the thesis points out that the protection under copyright law is created for thetrademark strategy of trademark owner, and copyright law have little importance forunregistered trademark having certain influence and unregistered well-known trademark.The sixth chapter expounds the perfection of unregistered trademark in China. Reflectingthe practice of unregistered trademark in China, the thesis argues that the registrationauthority is obliged to prohibit the scramble for registering trademark with honest and creditprinciple. The thesis comprehensively expounds the difference between trademark use andtrademark being used and points out that the consumer’s expression having trademarkmeaning differentiates from trademark use having market meaning, thus correctunderstanding of the meaning of trademark being used needs to integrate different object. Thethesis asserts that concurrent employment of the mode of prior use and of the mode ofanti-unfair competition law to perfect unregistered trademark in China. Particularly, usecontent shall be prescribed in the registry-applying clause and Prior use shall be expressed in the trademark law to provide jurisprudence foundation for unregistered trademark. The clauseof barring passing-off and reverse passing-off unregistered trademark having certain influencein the anti-unfair competition law.