The Protection Of Unregistered Trademark By Anti-unfair Competition Law

The legal protection of unregistered trademarks is always a hot issue in China, the reason lays in the defects of protection mode of the unregistered trademark. The trademark law of China has been strongly criticized before the third amendment, only because of the strict registration system of trademark right. Only registered trademark can obtain a comprehensive protection of trademark right from the trademark law. For unregistered trademark, the protection is provided only for trademarks with influence. This kind of protection is not given directly against the others. Lack of the protection from trademark, the mission of protecting unregistered Trademarks shall be taken by Anti-unfair competition law. But the Anti-unfair competition law has also failed to fullfill, which resulted in a legal vacuum for unregistered trademark. Facing this problem, the experts and scholars went through a lot of theory of legislative research. Lots of proposals are given, of which the highest voice is changing our trademark system, and put the unregistered trademark in trademark law protection system. However, the new trademark law was enacted in 2013. With the new law, the principle of honesty and good faith are included in the trademark law system. Besides, it gives the unregistered trademark first user the right to continue to use. But trademark registration system is still used, thus, we have to find a new way for the legal protection of unregistered trademarks.In my opinion, the trademark registration system in our country is not only adapt to the fast-paced market operation, but also could ensure the certainty of law and order and stability of the trademark rights; at the same time, the construction of legal system must be taken into consideration. Therefore, to protect the unregistered trademarks, the trademark registration system should be seen as a starting point. In the premise of respecting China’s trademark registration system, only if we clarify the connection trademark law and Anti-unfair competition law, make sure that Anti-unfair competition law has the function of protecting unregistered trademark, and keep improving the Anti-unfair Competition Law, can we build up our system of legal protection for unregistered trademarks.In summary, this paper focuses on the legal protection of unregistered trademarks, attempts to study the legal protection of unregistered trademark from the view of Anti-unfair competition law. To solve this problem, this article is divided into three parts. The first part clarifies the basic concepts and the necessity of the protection of unregistered trademarks. With the study of trademark rights, it introduces three kinds of mode of protection for unregistered trademark. The second part gives the answer for how to protect the unregistered trademarks. First, it briefly introduces the market competition and the origin of the Anti-unfair competition law; and then through the analysis of the relationship between trademark law and Anti-unfair competition law, it proves the rationality and necessity of Anti-unfair competition law; after choosing the path of protection, it discusses specific conditions for protection and the specific violations. The third part gives a detailed analysis of China’s current Anti-unfair competition law and gives the suggestion of legislation.