Legal Protection Of Unregistered Trademarks

This article focuses on the study of well-known and common unregistered trademarks in China, and analyses some related foreign laws on the theory and principles about unregistered trademarks in foreign countries so that to provide useful experience, which can be used for reference to perfect our country’s not registered trademark legal system in use. The writer also analyses and studies the possibility of unregistered trademarks’ infringement. Some theories supporting unregistered trademarks are also summarized.Combined with the impact analysis in the real society, this article mainly researches the laws and principles of unregistered trademark protection at home and abroad in order to discover problems, seek research solutions and put forward some useful constructive suggestions.There are nine chapters in this paper in total:Chapter1is the overview and summary on the concept, characteristics and function of the trademarks. The definition and characteristics of trademarks are mentioned to illustrate the basic structure of trademarks and related laws and regulations. The necessary conditions for unregistered trademarks are discussed for the purpose of further basic understanding and preparation about unregistered trademarks.Chapter2is Unregistered trademarks of their legal protection.Only registered trademark can be obtained in our country, but it is still the truth that there exit many unregistered trademarks under the current legal principles in our country. This chapter carries on the analysis from four aspects of the principle of voluntary registration, the time facto, cost considerations and convenience considerations to explain the existence of unregistered trademarks in the reality; Unregistered well-known trademark from the concept, characteristics, identification mode and unregistered well-known trademark issues studied.Based on the basic theory of well-known trademark, this chapter puts forward some problems need to be solved under the rule of law in our country; Unregistered well-known trademark research.The concept, characteristics and needs of unregistered well-known trademark legal protection is analyzes. Because the concept of unregistered well-known trademarks has not been mentioned in the law in our country so far, their great commercial value has appeared but not well-protected. This chapter discusses the value of unregistered trademarks and the protection of our own brand; Unregistered ordinary trademark research.Unregistered ordinary trademarks haven’t been formed stably, and there is not so much value, so the violation is much less likely. For the registration principle of common unregistered trademarks in our country, unregistered trademarks should not be put into general legal protection. While for the aspects of first right protection, relevant authority should be found for its registration and management to provide legal basis of infringement in the future. Because of the reasons ahead, this chapter only focuses on the concept and characteristics of ordinary trademark registration.Chapter3is the theoretical basis of unregistered trademarks legal protection. Locke’s Labor Property Rights, Goodwill Theory and Against Unfair Theory are the theoretical basis of unregistered trademarks legal protection. This chapter is theory foundation for unregistered trademarks legal protection.Chapter4is Macroscopic investigation unregistered trademarks of legal protection This chapter mainly introduces the unregistered well-known trademark law through the Paris Convention and TRIPS Agreement and the continental law system and common law legal protection of unregistered trademarks research. Common law is based on British and American legal protection of unregistered trademark and principles, from the analysis of which can draw lessons. Continental law analyzes unregistered trademarks legal protection and principle of Germany, Japan and Taiwan. T he protection of unregistered trademark is relatively complete in Germany, from which we can learn a lot.Chapter5is the Microanalysis of unregistered trademarks of legal protection and suggests how to improve the unregistered trademarks legal protection. Based on the previous discussion of unregistered trademarks in the chapters before, this chapter summarizes suggestions of the unregistered trademark protection in our country from the three aspects of unregistered well-known trademarks, registered famous trademarks and unregistered common trademarks.