The Cognizance Of The Unregistered Trademark Use

The principle of voluntary registration of China’s trademark field is the legal basis for the legal existence of the unregistered trademarks. By fourth of China’s " Trademark Law ",trademark users can decide whether to obtain the exclusive right to use a trademark on their own mind in the trademarks field, according to the principle of law does’t prohibit range can free activity, under the premise of not violate the sixth of China’s "Trademark Law", the commodity producers and operators have rights to choose whether to register the sale of goods or services. In the registration system of our country, the protection for registered trademark is comprehensive, but the unregistered trademark issues have only received lots of attention in the circles of theory and practice, not have manifested in Trademark Law, this still can not meet the needs of the development of social practice. Although there is a breakthrough after two revisions of Trademark Law, as there is regulations of relief program for the unregistered well-known trademark and the certain effect ones when they infringed, but the common unregistered trademark which account for the largest proportion of market is still in the lawless state. The measures to the unregistered trademarks which have certain effect are passive and defensive, can’t fundamentally solve the problem, and the use of the relief means procedure has many restrictions. As need to prove the use is"certain influence" and others use unfair means, it has no doubt increasing the difficulty of application of this only protection clause to a certain extent. Further, the lack of "priority using" and "certain influence" standard, it is more difficult for the unregistered trademark users to prove the "using" in trademark disputes, so it is unable to effectively safeguard their own rights and interests, it go against our country’s progress of trademark strategy and the construction of the society ruled by law. My article is based on the importance of "using" to debate the conditional of using, which will interpretation the reason of the great attention should be paid to the unregistered trademark, it will provide a new perspective to understand the stretch voice of protecting the unregistered trademark. "Use" plays an important role in the field of trademark, it is the core value of brand, the goodwill that should be protected on unregistered trademarks and the trust of consumers interests are all the effect of "use". To make clear the unregistered trademark using conditions, can provide a clear criteria for the judicial organ when hearing about unregistered trademark cases, it also provide a reasonable expectation for the unregistered trademark users. Given the initiative right to the prior users of unregistered trademark who is in accordance with the relevant standard, which is good for correcting the malpractice of the trademark legislation in our country, and curb the trademark preemptive registration phenomenon originating from the registered trademark, if so can emphasize the fundamental status of the principle of honesty and credit in trademark law, to provide legal guarantee for the better protection of trademark users’interests and the interests of consumers. My article is writing from the basic theory of unregistered trademark introduction, in the different position of unregistered trademark and trademark in trademark law to conclude that the necessity of the use of the unregistered trademark. And then to "use" as the breakthrough point layers of depth, from the discussion on how to use the unregistered trademark before the application is the use of the trademark law belongs to the category of sense, to the discussion for determining whether the use of unregistered trademark is the prior use, all this are the definitions of trademark using including the common unregistered trademarks. And the recognized standards of unregistered trademark "certain influence" is mainly to provide a application of China’s "trademark law" thirty—first article reference conditions for unregistered trademark users which in accordance with the use requirements. Finally, in the lack of the using of unregistered trademark in China’s current legislation of trademark, put forward the standard of using for the different stages of unregistered trademark, in order to improve China’s trademark legislation system, expecting to have the benefits to the development of China’s trademark system and trademark of good market order.