A Study On The Legal Issues Of Unregistered Trademark

The principle of voluntary registration that established by "The People's Republic of China Trademark Law" is the legal basis for the existence of unregistered trademarks, the condition that domestic producers were lack of awareness of IPR protection provides social foundation for the existence of unregistered trademark. On the era of knowledge economy, trademark contains huge commercial value,under the system of which mainly contains exclusivity and priority of trademarks, the interest of unregistered trademark user are more vulnerable to be trotted, unregistered trademark is the crystallization labor of users, for the purpose of maintaining order of market and value of legislation ,and of avoiding the consumer's confusion on the source of goods and services, it is deserves that the natural right enjoyed by the user should be confirmed by the law. The perception on the necessity of protection of unregistered trademark has gone through a slow course of development in China, in early years, all the provisions in the earlier trademark law were set up around a registered trademark, emphasizing on the management of unregistered trademark and ignoring of the protection. Till the amendment of"Trademark Law"in 2001, the legal system focusing on protecting unregistered trademark had been built up gradually which contains Trademark Law as the main body, Anti-Unfair Competition Law as the supplement, General Rules of the Civil Law, Copyright Law and Patent law as added. This paper analyzes the characteristics of the legal system, by proceeding a comparative study on the related systems of three typical countries as the United States, Germany and Japan, dissected the deficiencies of China's legal protection on unregistered trademarks, so as to propose the formation of systematic regulation on protection of unregistered trademark in the level of legislative, institutional and consciousness.Apart from the use of legal interpretation and logical analysis method, this paper is based on philosophy, jurisprudence, civil law and other related theories, and integrated closely theoretical research and case studies, in order to discuss the necessity and feasibility of improving our system of legal protection on unregistered trademarks.The body of this article is divided into five chapters:Chapter I: Starting with basic theory related to unregistered trademark, especially emphasizing on specific standard of recognizing unregistered trademark in the judicial practice, this section points out that the standard should be evaluated comprehensively combined with various factors in individual case, such as whether the standard function as distinguishing the source of goods and service.Chapter II: Pointing out the legal and practical reasons to the objective existence of unregistered trademark, so as to analyze the three theories as"Theory of Labor and Property rights","Theory of Goodwill"and"Theory of Anti-Unfair Competition". This section demonstrates the interior root of protecting unregistered trademark is that the users hold the unregistered trademark as the nature right.Chapter III: Selecting three typical countries'regulations(the United States, Germany and Japan) on trademark as the basis of relative theories research, this chapter compares and analyzes the diversities on attitude, methods and level about protection of unregistered trademark around countries, clarified the significance of referring other countries'regulations on protection of unregistered trademarkChapter IV: Listing four typical forms of violation to the unregistered trademark:malicious registration, registration in good faith,counterfeiting, reverse-counterfeiting,analyzing the history and current characteristics of the legal system on protection of unregistered trademark in China, this part demonstrate the deficiencies of China's legal protection on unregistered trademarks.Chapter V: Basing on the analysis of the previous paper, the final chapter proposed to classified the unregistered trademark as well-known unregistered trademark, famous unregistered trademark,and regular unregistered trademark according to the popularity and suggested that it is time to perfect the regulation on unregistered trademark through refining the legislation on trademark and strategically protecting the trademark right of operators.