On The Legal Protection Of Unregistered Trademarks

China currently executes a voluntary trademark registration system, in addition to the commodities which must use the registered trademark, other goods and services all can use the unregistered trademark,it is leading to existing a lot of unregistered trademarks in reality. in the case cited in this paper,the sign of "little sheep" which is used as a trademark has not been registered for a long time for various reasons. compared to the registered trademark, the law does not provide necessary protection to the unregistered trademark, it only provides limited protection to the unregistered well-known trademark and the trademark which has certain influence on earlier use. but, due to leck of clear relevant recognizing standards,it has obscurity on recognizing the above two unregistered trademarks.the sign of "little sheep" is recognized as an unregistered well-known trademark in the end after a long time lawsuit.even though, a trademark has not been recognized as the above two unregistered trademarks,it is necessary for the law to provide protection to them.this paper discusses this necessity on theory and reality respectively.Meanwhile, the unregistered trademark has its own characteristic,it has particularity when provided protection by law.At present, the protection of the unregistered trademark is mainly provided by the trademark law and the anti-unfair competition law, it has difference between these two laws in the protection of the unregistered trademark,and they also have defects.the trademark law is built as the registered trademark as center, there is not enough articles about the unregistered trademark in this law, "unregistered trademark" has not formed as an independent legal concept so far. the anti-unfair competition law also exists deficiency in tort standards and the scope of protection respectively, the improvement of the unregistered trademark protection is based on the perfect combination of the trademark registration legislation and the tort law, commercial infringement claims belong to civil tort litigation, in modern times,more and more people accept it as the important part of the competition law, "honesty and credit"and "fair competition" are its core principles. In our country,trademark legislation and anti-unfair competition legislation constitute the trademark protection system, but our country's legislation area has not established commercial infringement claims, in order to maintain the principle of "fair competition and "honesty and credit", our country should establish commercial infringement claims in the protection of the unregistered trademark.