| The subject of this study is the legal protection of unregistered well-knowntrademarks. The purpose of this study is to make people aware of the life of thetrademark is to use, whether the trademark is famous or not, it is not entirelydepended on registration which is only a legal form and means to obtain trademarkrights. Through the establishment of an unregistered well-known trademarksprotection of private rights to protect property, recognize the fundamental rationalityof an unregistered well-known trademark protection, call on people to strengthen theawareness of the protection of unregistered well-known trademarks, and proposerealistic protective pathway and suggestions to better protect unregisteredwell-known trademarks.The legal protection of unregistered well-known trademark has full legitimacyand legality in trademark jurisprudence in China and it is also the main obligationsfor the protection of Industrial Property Paris Convention and other internationalconventions. To unregistered well-known trademark, there is some protection inChina’s trademark legislation and judicial practice, but there are still some need toimprove. we should give full and adequate legal protection to unregisteredwell-known trademarks from the existence of reasonable and inevitable, the fact oftrademarks and the distinction between goods and services. The purpose of thisstudy to people is to improve the awareness of legal protection for unregisteredwell-known trademark, and propose feasible measures and suggestions for reference.Full article uses unregistered well-known trademark’s legal protection as thecenter, which is divided into six chapters, The first chapter is an overview of theunregistered well-known trademark from the definitions, characteristics, functions,and the legal nature of concepts and theories, to make a preliminary understandingand mastery of unregistered well-known trademark; The second chapter uses thejurisprudence and economics theories to elaborate the theoretical basis of the legal protection of unregistered well-known trademarks, the main theoretical basisincludes labor property rights, the principle of fairness and justice, the principle ofgood faith, goodwill rights theory and illustrates the legal protection of unregisteredwell-known trademark is truly embody registered trademark voluntary principle,maintain the use of the trademark interests, highlight the function of the trademarkitself and the inevitable requirement to follow international conventions reflect theneed to further improve the theoretical significance to identify unregisteredwell-known trademark legal protection and practical significance, analyze thereasonable and inevitable of unregistered well-known trademark protection’sexistence. The third chapter uses the comparative approach to study the internationalconventions and the different regions of the United States, Japan, the differences ofthe different countries of unregistered well-known trademark protection provisions,summarize and compare these provisions, and analyze the glittering and deficienciesof these protective provisions, to learn their advanced achievements, and to seekconvergence with China’s national conditions and social practices.Based on thetheoretical analysis of the first three chapters, the fourth chapter makes apreliminary seminar of the current unregistered well-known trademark protectionabout the theoretical and practical issues of concern and attention, citing severaltypical cases to the unregistered well-known trademark protection which has greatsignificance, such as the Mongolian Cow Sour Yogurt case, the trademark dispute of"Viagra" which is not registered, from these cases, describing the current practiceof legal protection which we should pay attention to,help us beware of the fact thatthe unregistered well-known trademark’s changing into common name, and howaccurately identified unregistered well-known trademarks, it is clear that we stillneed a more complete and advanced protection to unregistered well-knowntrademarks. The fifth chapter describes the current situation of our unregisteredwell-known trademark protection and analyzes the shortcomings of the unregisteredwell-known trademarks protection. The final chapter is an important part in the full text, based on the spirit of theory with practice principles, we make some measuresand feasible proposals to the improvement of the unregistered well-known trademarkprotection, to improve the systems of existing laws of our unregistered well-knowntrademark protection.This study conclude that: the legal protection of unregistered well-knowntrademarks is not perfect, in view of the market dominance of unregisteredwell-known trademarks goods or services, we should give the unregisteredwell-known trademarks more adequate and effective legal protection in order toprotect the unregistered well-known trademark owner and in accordance with thejustice requirements for trademark protection. Differ with other papers whichresearch the unregistered well-known trademarks protection, writer talks about howto better improve the unregistered well-known trademark system of legal protectionfrom three main aspects, which includes the legal system level, unregisteredwell-known trademarks’ supporting management level and protect themselves level.In the level of the legal system, we need make the legal status of the unregisteredwell-known trademarks clear,to further clarify the expansion of the "TrademarkLaw", making cross-class protection to the unregistered trademarks, and establish theconcept of anti-dilution protection, and improve a series of legal remediesoperability, making the interpretation of legal terms clear for its operability; In theUnregistered well-known trademarks’ management level, the establishment of anunregistered well-known trademark use of management information systems as wellas sound and strict trademark of daily management and supervision system, thuscontributing to the Office to better management and legal protection to theunregistered well-known trademarks, reducing the occurrence of cases of trademarkdisputes, protecting the legitimate rights of unregistered well-known trademarkholder. In the level of self-protection to unregistered well-known trademarks, callingon the unregistered well-known trademarks’ holder to raise legal awareness, trainingthe anti-human Trademark Dilution protection awareness.We should also learn to use the trademark opposition, revocation procedures and trademark infringementproceedings to protect the unregistered well-known trademarks. Only amulti-pronged, China’s unregistered levels trademark of the legal protection systemcan not become a piece of paper talk, to play its due role in the practice of law, inorder to maximize the protection of unregistered well-known owner or user’s legalinterests, as well as something reflect the wisdom of results behind the unregisteredwell-known trademarks. |
