Study On The Protection Of Unregistered Trademark Under Competition Law

In China,the acquisition of trademark right adopts “trademark registration doctrine”,that is,the exclusive right of using a trademark only can be acquired through legal registration procedures.Affected by the traditional property rights thought and administrative thought,the legal protection of trademark rights which based on the trademark registration draw a popular attention,so as to make the registered trademark under the trademark law system has been the “orthodox” for a long period,while unregistered trademark been the “secondary”,only under a limited legal protection in the trademark authorization approval procedure.In the perspective of anti-unfair competition law,the legal status of unregistered trademark is also awkward.The article 6 paragraph 1 of anti-unfair competition law provides limited legal protection to some certain influential unregistered trademark,but this kind of protections are not exhaustive,not only the scope of protections is narrow,but also the applicable conditions is strict,not to mention the formation of unregistered trademark legal protection system.The unregistered trademark which has a certain influence carries an important value of goodwill.Whether the trademark is resisted or not should not be the precondition for trademark protection.With the continuous development of the market economy,the value generated by the use of trademark is highlighted.The phenomenon of trademark snatch,imitation of unregistered trademark,and reverse trademark counterfeiting are also accompanied,which makes the public more likely to misidentify or confuse the goods or services marked by trademark,thus causing serious harm to market competition.Unregistered trademark legal protection gradually draws a popular attention by different countries or regions.They build particular legal protection system through some legal approaches,such as taking the unregistered trademark as the same as registered trademark into protection under the trademark law,or protecting them respectively under the trademark law and anti-unfair competition law.Specifically,in China,although the trademark law and anti-unfair competition law on the protection of unregistered trademark have different function,but overall,competition law protection of unregistered trademark shall be in a dominant position.To stop market confusion,avoid focusing on goodwill impairment,prevent theft goodwill.Then,pay a special attention to the good quality,the commercial labeling and the business reputation of the market body.This paper is divided into seven parts according to the topic “protection of unregistered trademark under competition law”.Among them,the first part is the introduction,the first to the fifth chapter is the main body part and the last chapter is the conclusion part.It is hereby subdivided into:The introduction is first.Taking a large number of unregistered trademark cases in China as the starting point and combining with domestic and foreign literature research,to elaborate the topic background,research value,research plan and research methods.The first chapter is the connotation and legal protection outline of the unregistered trademark.This part is divided into five aspects.Firstly,elaborate the connotation,characteristics,causes and existing basis of unregistered trademark.The unregistered trademark cannot simply correspond to the “unregistered” trademark.The concept of unregistered trademark should be grasped by combining the competitive strategy,economic level,historical conditions,legal status and other factors.Secondly,divides unregistered trademark into three basic types according to the different popularity,that is,unregistered well-known trademark,unregistered influential trademark and unregistered common trademark.Thirdly,puts forward three legal protection paradigms of unregistered trademark protection,including trademark right protection,trademark right of first use protection and competition law protection.Fourthly,explores the connection and difference between the protection of unregistered trademark from the aspects of the object of protection,the way of regulation,the purpose of protection and the range of effectiveness under the trademark law and the anti-unfair competition law.Finally,restate the necessity of protection of unregistered trademark on the bases of consumers and operators' benefit,business reputation and market competition.The second chapter is about the legal issues of protection on unregistered trademark under competition law.This paper expounds the problems of competition law arising from the infringement of unregistered trademark,and demonstrates the necessity and feasibility of the protection of the competition law from the aspects of imitation of unregistered trademark,trademark snatch,reverse trademark counterfeiting,co-existence of trademark and dilution of unregistered well-known trademark.The third chapter is the theoretical basis of protection of unregistered trademark under competition law.First of all,with the help of interests balance theory,to analyze consumer interest in the protection of unregistered trademark under competition law,conflicts of interest between unregistered trademark and registered trademark,conflicts of interest between prior use and second use of unregistered trademark,in order to keep the balance between the free competition interests of market main body,interests of legal trademark marking rights,and the market competition order in the unregistered trademark competition law protection.Secondly,clarify the relationship between unregistered trademark and goodwill through the theory of goodwill,and explore the justification of protection of goodwill by competition law.Thirdly,identify the relationship between trademark infringement and market confusion with the help of the trademark confusion theory,and demonstrate the significance of the confusion theory in the protection of unregistered trademark under competition law.Finally,analyzes the legitimacy of the protection of unregistered trademark under competition law taking into account the function of honesty and credit in the protection of unregistered trademark under competition law.Chapter four examines the dilemma of protection of unregistered trademark under competition law.It takes a full view of the protection of the unregistered trademark in the form of protection,object of regulation,applicable condition of protection,and so on.In terms of the protection framework,there is a lack of effective integration of the laws and regulations on the protection of unregistered trademark under competition law,the pattern and value orientation of legal protection are not clear,and the legal protection of unregistered trademark is difficult to form its own system.On the regulation object,the behavior pattern of infringement on unregistered trademark lacks systematic integration,and the logic clues,logic basis,logic relationship and logical path of behavior typing are still unclear.In terms of protection conditions,there are still some problems such as the lack of standardization of “visibility requirement”,the lack of operability of “subjective evaluation” and the lack of cohesion of “confusing elements”.The fifth chapter is the construction of protection system of unregistered trademark under competition law.Firstly,on the value concept of unregistered trademark protection under competition law,establishing the value orientation such as promoting market competition,protecting consumer interests and maintaining the value of goodwill to guide the corresponding institutional arrangement and rule construction.Secondly,puts forward some suggestions to perfect the protection of unregistered trademark under competition law from the aspects of protection boundary,regulating object and regulating means.on the aspect of protection boundary,it clearly defines the “prior use” or “actual use” and the applicable condition of visibility “influential”.At the level of regulating objects,extends the types of unfair competition behaviors of infringe unregistered trademark to imitation of unregistered trademark,trademark snatch,reverse trademark counterfeiting,co-existence of trademark and dilution of unregistered well-known trademark.At the level of regulating means,in the view of the close connection between goodwill,trademark and commodity,specific regulation countermeasures are proposed from the aspects of prevention of market confusion,prevention of market confusion,avoidance of derogation of goodwill and prevention of misappropriation of goodwill.Finally,puts forward a concrete idea on the integrated protection of unregistered trademark.Although the protection of unregistered trademark is mainly under the anti-unfair competition law,the role of civil law and trademark law should not be underestimated.While establishing the protection system of unregistered trademark under competition law,it is proposed that the legal resources of other departments should be integrated to form an integrated legal protection system of unregistered trademark.For example,in terms of conceptual terms,the concept of unregistered trademark should be unified in different laws,and pay special attention to the cascade protection while setting the applicable conditions of the protection of unregistered trademark.In the aspect of system connection,attention should be paid to functional differentiation and fusion complementary between the anti-unfair competition law and the trademark law.In the right coordination system,should emphasize the standard of the commercial labeling right conflict resolution.The last part is the conclusion,it provides systematic review on the principles,laws and practical significance of the protection of the unregistered trademark under competition law,and combing with the specific practice,put forward some suggestions and prospects for the future protection of the unregistered trademark under competition law.