Unregistered Improve The Conservation Status Of Its Well-known Trademark System

This paper is going to introduce to the concept of unregistered well-knowntrademark, analyze the necessity of China’s current legal protection for theunregistered well-known trademark, then offer a proposal of the perfection ofunregistered well-known trademark protection, on the basis of analyzing the existingproblems of unregistered well-known trademark protection legislation and judicialcases. The article is divided into five chapters.The first chapter has introduced the theoretical basis of the unregisteredwell-known trademark, firstly lead to the definition of the unregistered well-knowntrademark, and then analyzed its connotation, conducted a comprehensive definitionby its character. Then described identification method and the cognizance rules forunregistered well-known trademark in China, the identification method is dividedinto administrative cognizance and judicial cognizance, cognizance subject are theState Administration for Industry and Commerce Trademark Office, the TrademarkAppraisal Committee and the people’s court which is involved. Cognizance rule isidentified from consideration of five aspects, which are the know extent of thetrademark by the relevant public, the duration of using the trademark, the duration,extent and geographical scope of any publicity work, the protected records of it as awell-known trademark and other factors of it.The second chapter has introduced the protection of unregistered well-knowntrademark at home and abroad. International Convention which offer the Firstunregistered well-known trademark protection on similar products was "the ParisConvention", followed by the TRIPS agreement which expanded the scope ofprotection for the unregistered well-known trademark. However, the two types ofinternational conventions are just the principle provisions, and the Joint Proposalprovide a more complete protection mechanisms, but it was not mandatory. The EUcountries has used the protection form of the right for priority for the unregisteredwell-known trademark, the United States has used more powerful anti-dilutionprotection mechanism.The third chapter has analyzed the practical significance of protectingunregistered well-known trademark. Well-known trademark carried a highcommercial value which should be protected. However, a lot of infringement onunregistered well-known trademark existed in real life, and the protection of it in China is very weak，China needs to establish a comprehensive protection mechanismto regulate such phenomena. The protection of unregistered well-known trademarksis to protect the goodwill, which in line with the good faith and fair principle, also inline with international trends.The fourth chapter is the analysis of the conservation status of unregisteredwell-known trademark, which cited several cases in China’s relevant laws andregulations and legal practice to arrive at the problem of unregistered well-knowntrademark protection:"Trademark Law" is lack of provisions for the unregisteredwell-known trademark protection and procedural civil remedy methods, thecognizance rules is not clear; unregistered well-known trademark procedural civilremedies, the administrative penalty is not enough. The protection boundaries ofunregistered well-known trademark in the “Anti-Unfair Competition Law” are notclear.Chapter five is a separate section of the unregistered well-known trademarkprotection, which explicitly unregistered identification mechanisms for theprotection of well-known trademarks, improved the corresponding civil remediesand related administrative punishmen，we can learn from foreign legislation to offerseveral suggestions of improving our country unregistered well-known trademarkprotection mechanisms.