Unregistered Well-known Trademark Protection

A well-known trademark is a trademark with a higher reputation on market, familiar to relevant public and with strong competitiveness. The difficulty in the protection of well-known trademark is on the legal protection for the unregistered well-known trademark. The unregistered well-known trademark includes two kinds: one is that foreign enterprises don't register in China; the other is that Chinese enterprises don't obtain the registered trademarks. Because legal protection in China for the unregistered well-known trademark is weaker than registered well-known trademark as well as unsystematic legislation, infringement about the unregistered well-known trademark is more serious in practice. In recent years, the Trademark Review and Adjudication Board and the court have ascertained a large number of unregistered well-known trademarks and effectively protect the lawful rights and interests of the owners. In this process, however, there have been a lot of disputes.In order to deal with such cases helpfully in further judicial practice, this paper analyzes a typical case, the No.1267138 "HuiErKang" trademark dispute and administrative lawsuit case between Xiamen HEK Food Co.,Ltd and Fuzhou WTL Nutrition Food Co., Ltd. This paper is divided into five parts: the first part is the cause; the second part introduces the case; the third part is the generalization about focus of dispute; the fourth part is differences and opinions; the fifth part gets research conclusion.There are three focuses of disputes in this case: confirmation of the malicious trademark registration, confirmation of infringement and legal remedy of the unregistered well-known trademark. As for Trademark Review and Adjudication Board, the first disputed point is the common problem in dealing with trademark dispute. The second disputed point mainly discusses how to determine the trademark infringement from the source of the theory. The third disputed point is to explore the ways of solving problems of Trademark Review and Adjudication Board and the mode of judgment of the courts. In such cases, people often rush to register the well-known trademark with different aims. So it is worthy of our consideration on confirmation of malicious registration. For confirmation of infringement, due to the lack of specific legislation, the author only discusses theoretically and tries to establish a viable standard. For legal remedy of the unregistered well-known trademark there are three main ways in theory and practice: rejection for registration, prohibition to use and cancellation of the trademark registration ;taking on liability to compensation; taking on criminal responsibility.By the analytical argument to three above problems, in order to reach the right conclusions for confirmation of the unregistered well-known trademark, the author thinks we should abide by the principle of good faith and consider various situations. The author puts forward a comparatively overall standard about confirmation of infringement ,makes clear the feasibility and value of the legal remedy way and puts forward some suggestions on the protection of the unregistered well-known trademark .