Research On Protection Of Non-registered Trademark

Pursuant to Trademark Law, the regime adopts the doctrine of exclusive use for registered trademark; therefore, protection for non-registered trademark is rather weak. Trademark Law reasonably considers the right of non-registered trademark, however, only non-registered famous trademark and non-registered influential trademark included in the protection of non-registered trademark. Finally, some trademarks are excluded in the protection and the rights of trademark owner are not truly protected. For non-registered ordinary trademark, the regime keeps silent on this issue. Comparing with other countries, especially countries adopt exclusive use, they have comprehensive protection for trademark though there are certain shortcomings. Therefore, this paper intends to make a deep comparison for non-registered trademark, especially for non-famous non-registered trademark, and provide advices combing the theories and practices of other countries.This paper constitutes three parts:In first part, analyzes the basic theory of non-registered trademark. This paper defines the meaning of non-registered trademark, the non-registered trademark needed protection shall satisfy the criteria of trademark in trademark law. Then, the paper analyzes the nature of non-registered trademark right. The right for non-registered trademark is one of trademark rights and a civil right; it shall be entitled to be protected by law. Third, the paper analyzes comprehensively the reasons for protection, including the legality, reasonability; protection on non-registered trademark reflects the principle of fair play in competition, utilizes the function of trademark and reflects the trademark law regimes and principle of good faith and fair dealing.In second part, introduce the theory and practice of other countries regarding the protection of non-registered trademark. Firstly, introduce Paris Convention and Trips concerning the protection of non-registered trademark and mention certain theory in European Union. Secondly, introduce foreign non-registered trademark protection comparing the common law and civil law system. Finally, make a inclusion about the strength and weakness of non-registered trademark protection in other countries.In the third part, make a research on the protection of non-registered trademark in our country. The part concentrates on the current circumstances of non-registered trademark in our country and provides some advices. In this paper, double-trail legislation model is suggested, that is with the core of Trademark law and supplemented with relevant provision with better protection of non-registered trademark.