On Unregistered Trademark Protection

The trademark registration system has become internationally accepted. According to current Chinese trademark law, only if a trademark has been registered will it obtain comprehensive protection by law. However, as the socialist market economy becomes increasingly prosperous and market competition is more and more fierce, plenty of unregistered trademarks are being created. This triggers rush registration, tort and other behaviors. Chinese law can only give unregistered trademarks limited protection. The nature of trademark is a connection between specific products and symbols, distinguishing goods from services, and can combine enterprise honors, product reputation, and work of the owners. No matter registered or not, all trademarks have this nature. As a result, unregistered trademarks are supposed to be given some legal protection. Accordingly, this thesis analyses and discusses current laws and regulations in terms of unregistered trademarks, and then gives some evaluation of the basis of the third draft of the Trademark Law.This thesis has four chapters. Unregistered trademarks" are defined in the first chapter. There are three situations, where:1.users never registered their trademarks; 2. users applied for registration, but did not receive approval; and 3. users have applied, but the results are still pending. Utilizing a significant number of statistics and graphs, I analyzed the reasons why unregistered trademarks situations arise, resulting from needs of producers and provincialism of unregistered trademarks. This is the inevitable result of the current system.The second chapter mainly discusses the legal basis and key components of the protection of unregistered trademarks, illustrating that protecting these depends on the nature of trademark, the principle of good faith and the requirement of liberty, equality and efficiency. As far as the conditions of protection of unregistered trademarks are concerned, I firstly discussed the strengths of the registration system for unobtained trademark rights by comparing it and the current obtained trademark rights system. Furthermore, protective conditions have been proposed:1. the unregistered trademark must have the function of trademark; 2.the trademark has to be actually used; and 3. it must have some influence.The production of unregistered trademark is discussed as comparative law in the third chapter. The first section introduces the Paris Convention, the TRIPs Agreement, the Community Trademark Regulations and the Directive to approximate the Law of the Member State Relating to Trade Marks in terms of unregistered trademark protection. The second section introduces general legislation in the Anglo-American Legal System, while the civil law system is introduced in the third section. The final section mainly discusses the history and current situation of unregistered trademark protection in China.The final chapter proposes some problems about the protection of unregistered trademark in China. It gives some evaluation of the basis of the third draft of the Trademark Law in terms of entity and process, and dwells on legislation and management aspects. This is the main innovative point of this thesis.The main methodologies in this thesis are comparative study, and empirical analysis. It focuses on the key points of the third draft of the Trademark Law, which outlines the protection of unregistered trademarks. The essential findings are:1. the status of unregistered trademark in the trademark law needs to be defined; 2.the scope of unregistered trademark should be defined, alongside the concept of trademark rights; 3.the protection of trademarks that are within the application process should be increased, and the law must entitle registrants the right of claim for damage compensation; 4.cancelling investigation of relative grounds does not necessarily lead to efficiency; and 5.we should coordinate the relationship between the trademark law and the Turn Over Malfeasance Compete Law.