Protective System Unregistered Trademarks

In the modern market economy, there are a large number of unregistered trademarks. Whether well-known unregistered trademarks or ordinary unregistered trademarks, their existences do have rationality and value, also consistent with the laws of economic development. The Trademark Law of People’s Republic of China adopts the principle of registering on the trademark’s own initiative. The law focuses on protection of the right to exclusive use of the registered trademark, while also allowing the presence of unregistered trademarks. Registered trademarks and unregistered trademarks play the same function of identify their source in order to distinguish the goods or services. However, the existing laws on the protection of unregistered trademarks are very limited, especially lack of the protection of ordinary unregistered trademarks. This situation is neither conducive to maintaining market order and the legitimate interests of consumers, nor to the healthy development of the market economy. And the situation also caused the attention of many scholars. The purpose of this study is to demonstrate that the protection of unregistered trademarks is legitimate and important, make some suited legislative proposals by comparing the reference to international treaties and foreign laws, in order to improve our country’s legal system for the protection of unregistered trademarks.In this paper, legal argumentation method, case analysis method, statistics and comparative analysis and other research methods have been used to discuss the study about the system of protection on unregistered trademarks.Part I is unregistered trademarks statistics and typical cases. It introduces statistics and three representative typical cases of unregistered trademarks to proposing the problem of unregistered trademarks field and leading below.Part II is basic theory for the protection of unregistered trademarks. Firstly, it introduces the concept, range and cause of unregistered trademark. Secondly, it explores the essential characteristic of trademark. By analyzing the function, nature and mechanism of trademark, it concludes that trademark has a private right characteristic. Thus it demonstrates unregistered trademark also has a real sense of the trademark. Lastly, this part analyzes the justification of protecting unregistered trademarks to clear the value of the protection.Part III is the system of foreign protection of unregistered trademarks. This part studies the trademark law system in the United Kingdom, the United States, France, Germany, Japan and other countries, including the historical development of the countries of trademark protection, trademark law and the basic principles, as well as the specific requirements. Lastly, it compares and summaries the attitudes and practices of the countries in the protection of unregistered trademarks.Part Ⅳ is the system of international protection of unregistered. It introduces requirements and attitudes of unregistered trademarks in <Paris Convention on the Protection of Industrial Property> and <Agreement On Trade-related Aspects of Intellectual Property Right>, which are two important international treaties in the field of intellectual property.Part Ⅴ is status and suggestions for improvement of Chinese protection on unregistered trademarks. Firstly, it sorts out the development path of Trademark Law of China; it highlights the development and specific provisions about the attitude of China’s Trademark Law on unregistered trademarks. At the same time, it introduces the relevant provisions of the Anti-Unfair Competition Law, Copyright Law, Patent Law and the General Principles of the Civil Law involving unregistered trademarks. Secondly, it studies on the present situation of the protection of unregistered trademarks analysis, and pointes out some problems such as unclear legal status, lack of comprehensive protection aspects, efficiency is low and so on. Finally, it proposes the suggestions about the protective system of unregistered trademarks.Based on the analysis, this paper concludes the follows:the owner of unregistered trademarks has the right to enjoy a specific range of trademark rights. That law to strengthen the rules and protection of unregistered trademarks is justifiable. The foreign legislation also illustrates unregistered trademark protection has become the trend of globalization. Therefore, the existing laws of China on unregistered trademarks are weak and should be changed. For improving the legal rules and protection of unregistered trademarks, we should perfect start from the trademark system, given the right to a certain range of the unregistered trademark rights and relief ways.