The Protection Of Unregistered Trademark By Anti Unfair Competition Law

Unregistered trademark is same as the registered trademark, it is any visible symbol which can distinguish the product or service of natural person, legal person or other organizations with others, including characters, graphics, letters, numbers, three dimensional symbols, combination of colors, and the combination of the above elements. Since trademark registration system has become the universal system all over the world, the voluntarism of the trademark registration again makes the complexion of the concurrence of registered trademark and unregistered trademark in the country where the registration system is carried out. For this, most of the countries regulate it by Trademark Law or Anti Unfair Competition law. The broad ocean of the trademarks is mainly consisted of by unregistered trademarks in our country, the amount of the registered trademarks is just a small number. As a result, the main battlefield of the protection for trademarks should be the one for unregistered trademark. However, because of the influence of the absolutism of trademark registration in our country, no matter the Trademark Law of 2001, or the Anti Unfair Competition Law of 1993, are all difficult to meet the requirement of the protection for unregistered trademarks. So, it should be our emergent task to consummate the legal protection for unregistered trademarks.After the modification of the Trademark Law in 2001, scholars and legal practitioners have done quite a lot of research on unregistered trademark from every aspect. But whether it is reasonable for the existence of unregistered trademark? Which kind of right dose the owner of unregistered trademark have? What legal position dose it take in the Chinese legal system? Where are the reasons for such large amount of tort disputes on unregistered trademark? We should apply Trademark Law or Anti Unfair Competition Law for protection? What are the advantages and disadvantages for applying each? And so on, these still need researching. Based on the aforementioned consideration, this article tries to answer said questions by comparison analysis, economy analysis, demonstration analysis, legal interpretation etc., and based on that, to emphasize on discussing the necessity and reasonableness of regulation of unregistered trademark by Anti Unfair Competition Law, meantime, to analyze the processing difficulties on counterfeit and rushing to register the unregistered trademark in the legal practice, and finally, to make a brief evaluation on Anti Unfair Competition Law.This article believes: it can turn to an essential justice from the modal one no other than through protection of the registered trademark by Trademark Law and the unregistered trademark by Anti Unfair Competition Law.