Study On The Legal Interests Of Unregistered Trademarks In China

China adopts the basic principle that trademark rights are acquired through registration,and the trademark law establishes the whole system based on the trademark registration.Under this framework,China's unregistered trademarks exist as “legal interest”,and have the main contents of legal interests of unregistered trademarks in trademark law and anti-unfair competition law.However,through in-depth study of the existing provisions related to the unregistered trademarks' legal interests,it is found that there are many problems.It not only fails to effectively protect the unregistered trademark owners' legal benefits based on effective trademark use,but also stimulates the frequent occurrence of malicious squatting of others' unregistered trademarks in practice.In order to solve the problems and improve the existing trademark system in China,this paper is based on the legal interest attribute of unregistered trademarks,uses historical research,comparative research and case analysis research methods,analyzes the legitimate basis of the legal interests of unregistered trademarks and the beneficial effects of setting and protecting the unregistered trademarks' legal interests on the trademark registration system.By analyzing the existing regulations on the unregistered trademarks' legal interests at home and abroad,explores the due status of the protection of unregistered trademarks' legal interests.The ultimate purpose of this paper is not to deliberately strengthen the protection of unregistered trademarks in China,but to outline a standardized system of legal interests of unregistered trademarks through reasonable institutional arrangements and interpretation of existing systems,so that legitimate legal interests of unregistered trademarks can get due protection,the acts of malicious and improper registration of others' unregistered trademarks will be effectively stopped.In addition to the introduction and conclusion,this paper is divided into six chapters to conduct a detailed study of the legal interests of unregistered trademarks in China.In specific research,understanding the concept of unregistered trademark and legal interest is the premise of clarifying the connotation of unregistered trademarks' legal interests.An unregistered trademark is a mark that can identify the source of goods or services when combined with them through "use".Legal interest is the legally protected interest enjoyed by the legal subject,which different from the right.Combining the concept of unregistered trademark and legal interest,unregistered trademark's legal interest is the interest protected by law,which enjoyed by the legal subject,generated from the trademark use behavior and different from the trademark right.Its essence is that the goodwill generated based on the use of the trademark or the source identification of the trademark actually has after use.In China,the legal interests of unregistered trademarks have the specific practice basis.First of all,the trademark legal system has reserved the system space for the existence of the unregistered trademark and the existence of unregistered trademarks has its actual needs and advantages,which constitutes the legal legitimacy and practical necessity of the existence of the unregistered trademarks;secondly,under the two-division pattern of rights protection and legal interests protection in the field of trademark law,the principle that intellectual property rights must be statutory and trademark registration's “setting right” attribute are important factors that determine the legal interests attributes of unregistered trademarks in China;finally,based on the Chinese trademark legal system,there are three types of unregistered trademarks: well-known unregistered trademarks,previously used unregistered trademarks with certain influence and ordinary unregistered trademarks.In addition,examining the development history of the legal benefits of unregistered trademarks in China,it is found that the legal interests of unregistered trademarks in China have experienced a process of growing from scratch and gradually developing and improving.The above content constitutes the institutional background of the legal benefits of unregistered trademarks in China.The legal protection of a specific legal interest often affects the rights and obligations of the subjects related to it,therefore,when determining a legal interest,it is necessary to demonstrate the theoretical justification of its existence.The legitimacy basis of the legal benefits of unregistered trademarks is the foundation of the legal establishment and protection of the legal benefits of unregistered trademarks.Philosophy,especially legal philosophy,is the knowledge that first seeks help to demonstrate the justification of rights or legal interests.Unregistered trademarks contain the labor of the unregistered trademark owners and carry the use value and symbolic value of goods or services that refer to them,so the establishment and protection of unregistered trademarks' legal interests fully conforms to the labor theory of property rights and the theory of symbolic value.In addition to legal philosophy,jurisprudence as a general principle in the legal system,can also provide a basis for the justification of unregistered trademarks' legal interests.Under the preemption theory,although the owner of the previously used unregistered trademark has not completed the preemption through registration,but has actually taken possession of an ownerless mark in the sense of trademark law through use,this type of possession is more in line with the essence of trademark as the object of property right.Under the theory of justice,when an unregistered trademark has actual source identification and goodwill due to the use of the trademark,it generates legal interest in trademark law and should be properly protected.What's more,the trademark registration system is the basic system of China's trademark law,so the discussion of the legal interests of unregistered trademarks should take the prerequisite that shouldn't overturn the existing trademark registration system.The analysis shows that the establishment of unregistered trademarks' legal interests is beneficial supplement to the system of obtaining trademark rights through registration,no matter from the perspective of the mutual complementation of natural law theory and utilitarianism,or from the perspective of balancing fair value and efficiency value.After clarifying the legitimate basis of the legal benefits of unregistered trademarks,a typed analysis of the legal benefits of China's unregistered trademarks is an effective way to systematically sort out the legal benefits of China's unregistered trademarks.The legal interests of unregistered trademarks in China mainly include the legal interests of unregistered trademarks in the trademark law and the anti-unfair competition law.In trademark law,China's well-known unregistered trademarks have the most comprehensive legal interests,which can not only prevent others from confusing registration,but also prohibit others from using without authorization;the owner of an unregistered trademark that was previously used and has a certain influence enjoys the right to dissent and to request invalidation when others use “improper means” to preempt the registration,in addition,the owner also has priority right;the legal interests of ordinary unregistered trademarks are very limited,only when the counterparty has a special relationship with the owner of the unregistered trademark,can the owner of the unregistered trademark stop others from squatting,and when the counterparty is an agent or a representative,can the owner of the unregistered trademark prohibit unauthorized use of the unregistered trademark.In anti-unfair competition law,unregistered trademarks that have certain impact have the legal benefit of prohibiting counterfeiting,can stop the confusing use of others without authorization.In addition to trademark law and anti-unfair competition law,the general provisions of civil law concerning civil rights and interests can be used as the basis for the protection of unregistered trademarks,copyright law and patent law also protect unregistered trademarks under certain conditions.The above-mentioned establishment of legal benefits of unregistered trademarks in China plays an important role in protecting the benefits of unregistered trademark users using unregistered trademarks.However,through an in-depth examination of the specific provisions of the law on the legal benefits of unregistered trademarks,it is found that China's legal interests of unregistered trademarks still have some institutional defects,such as: the overall level of protection of legal interests of unregistered trademarks is insufficient;the unregistered trademarks' legal interests system has some parts that are ambiguous,inconsistent and controversial;the Trademark Law and the Anti-Unfair Competition Law have unclear boundaries.These have severely affected China's adjustment and protection of the legal interests of unregistered trademarks.In addition to the above-mentioned institutional defects,the core problem is that “the protection of the legal interests of unregistered trademarks” and “the legal regulation for malicious registration” are mixed.This not only makes the overall purpose of the unregistered trademarks' legal interests system unclear,but also makes the identification of malicious encroaching on the unregistered trademarks' legal interests not match with the legal consequences.Behind the confusion of “the protection of legal interests of unregistered trademarks” and “the legal regulation of malicious registration”,the crux of the problem is that China's unregistered trademarks do not have independent legal status.Countries that adopt different modes of obtaining trademark rights have their own characteristics of unregistered trademarks' legal interests practices.Represented by Germany,Japan and the United States,Germany adopts a parallel system of use and registration;Japan adopts a registration system in which registration can obtain rights and use can generate legal interests;the United States adopts a use system in which use is the main and registration is supplemented.Under the representative trademark acquisition modes of Germany,Japan,and the United States,unregistered trademarks have different legal attributes,protection methods,legal remedies,and so on,but they are all intended to protect the interests derived from the use of trademarks when regulating unregistered trademarks,Which is consistent with the intent of setting unregistered trademarks' legal interests in China.The characteristics and commonalities of Germany,Japan and the United States in the following aspects: unregistered trademarks that can be protected,the division of unregistered trademarks' legal interests in trademark law and in anti-unfair competition law,and contents of the unregistered trademark legal interest,can be used for reference to improve China's legal interests of unregistered trademarks.Based on the existing problems of the legal benefits of unregistered trademarks in China,refer to the practical experience of the legal benefits of foreign unregistered trademarks as appropriate,this chapter proposes to do the following things.First of all,clarify the proper positioning of the trademark law and the anti-unfair competition law in the establishment of unregistered trademarks' legal interests and the substantive requirements for obtaining the legal interests of unregistered trademarks,this is the prerequisite for the establishment of unregistered trademarks' legal benefits.Secondly,at the stage of trademark authorization and confirmation,in the trademark law,by distinguishing malicious registration and improper registration,drawing a clear boundary between“the protection of unregistered trademarks' legal interests” and“the legal regulation of malicious registration”.For malicious registration,it falls into the legal regulation to punish malicious intent,It is not required that unregistered trademarks have a high influence through use,as long as the unregistered trademarks have the status of being protected by law.And the Trademark Law adds provisions on the liability for damages of malicious preemptive registration.For improper registration,the possibility of confusion is taken as the basis of prohibition,unregistered trademarks are required to have a high degree of influence in identifying the source of goods or services.Finally,in the stage of trademark infringement,the anti-unfair competition law adds the concept of“unregistered trademark”,and sets up anti-obfuscation legal interests for general unregistered trademarks and anti-dilution legal interests for well-known unregistered trademarks.