Research On Protection Mode Of Unregistered Trademark

There has been a long time since the initial emergence of mark, and ancient Egyptian began to mark branded goods five thousand years ago. There have also been the prototype of trademarks in Western Han Dynasty in China. Hundred years ago, the French developed the "Trademark Law", which provided system of trademark registration for the first time, namely, to obtain trademark rights through registration. With the "efficiency" requirement of industrialization and globalization, a large number of countries have now provided the trademark registration system, and trademarks can be protected through registration. Registration system for trademarks has also been established in china since 1983.In theory, trademarks should be protected due to the condensation of the wisdom and labor in the trademark. First of all, a well-known and recognized trademark with inventor's hard working, financial and intellectual input should be legally recognized. Secondly, it also allows an existence of unregistered trademark under the background of the registration system in China now. Thirdly, modern concept of law has not been accepted by all over people of our country yet due to the unique circumstances and the rural society, and there are also a lot of unregistered trademarks. Therefore, it is much urgent to explore and develop a reasonable protection mode to the unregistered trademark. On the occasion of third revision to the Trademark Law, author will explore the current problems of protection mode to unregistered trademarks started by actual cases and combined with those of other countries, and put forward her views finally.On chapter one, through specific analysis of twelve recent cases referred to the rights disputes and the current legislation status, author will point out three current problems to the protection of unregistered trademark in legislation and practice: unclearness of legal status, confusion of protection mode and insufficiency of protection.On chapter two, author will point out the definition and several identified criteria to unregistered trademarks. Through the analysis of the other countries'protection status to a registered trademark, author think that the protection mode to unregistered trademarks can be divided into single-track system and dual-track system from the legislative technical points. Furthermore, it can be also divided into the mode of rights conferred positively, which includes giving the trademark and prior rights to the owner of unregistered trademarks, and the mode of negative defense which is adopted now in China to protect unregistered trademarks, from the points of different protected entities.On chapter three, author will advance fundamental idea and mode selection to unregistered trademarks in our country based on actual cases and careful comparison. Moreover, specific provisions will be also proposed combining with the occasion of third revision to the Trademark Law.