On The Legal Protection Of Unregistered Trademarks

In recent years, with the rapid development of commodity economy and the continuous innovation of intelligence, an operator in real life in our country has a large number of unregistered trademarks, by the law of the objective fact is not allow to ignore, we pay attention to the protection of registered trademarks at the same time, also cannot reject the protection of unregistered trademarks.China’s trademark law on August 30,2013, the third revision, the regulations on the implementation of trademark law is to begin on May 1,2014.According to the revised trademark law, trademark law protection in our country still is registered as a premise, the basis of all desires to get right to the exclusive use of a trademark should apply for registration of trademarks. The reason that our country adopts the principle of registration to the public power guarantee trademark, mainly for the convenience of management and protection of rights and interests of consumers. Unregistered trademark in our country, both fails to apply for registration, also has the application was rejected, and among the registration procedure has not yet been approved to register. A trademark has put forward the application for registration, but because the registration procedure in trademark dissent, the trademark review and adjudication and other dispute resolution process, leading to a long time cannot be allowed to registration of trademarks, the trademark has already been used, has spent a lot on trademark, trademark all has already formed the trademark property interest. If the law can give appropriate protection to the interests, obviously unfavorable to the legitimate use trademarks, is not conducive to maintain the market order of fair competition.This article will never the concept, characteristics and legal property of the registered trademark, the introduction of the theory of unregistered trademark protection and necessity.The article 7 of the trademark law in our country stipulates clearly the application for registration and use of trademarks shall follow the principle of honesty and credit, visible, the principle of good faith for the unregistered trademarks legal protection provides a solid and strong theoretical basis.Unregistered trademarks and registered trademarks, carrying the goodwill, in business transactions actually use trademarks can create value, brand has become a production operator’s intangible property. In this article, through analysis of Locke’s labor theory of property, the argument is not a registered trademark should also be protected by law.In addition, based on the theory of against unfair, we should forbid malicious registered and other acts of unfair competition, so as to maintain the order of market competition of the fairness and justice. Only unregistered trademarks are protected, can give full play to the fundamental function of a trademark, to protect the legitimate rights and interests of operators and consumers, and implement the honest credit market order.In today’s world, the unregistered trademark protection has been widely recognized by international trademark used in socialism and trademark registration to obtain both learn others.It has become the development direction of internationalization.This article first embarks from the international convention for the protection of industrial property Paris convention and the agreement on trade-related intellectual property rights, for example, demonstrates the two regulations on unregistered trademark protection. Again, the paper analyzes the Anglo-American law system countries represented by the United Kingdom, the United States and represented by Germany of the continental law system countries about the unregistered trademark protection theory, put forward an unregistered trademark legislation in our country, should draw lessons from the development trend of international legislation, take the essence, discard the dross, make an unregistered trademark get enough protection.In this paper about the present situation of the unregistered trademark protection in our country law is analyzed, the principle of voluntary registration of the trademark law in our country, the clear trademark protection, and did not establish the legal status of a registered trademark, we have not the concept of a registered trademark and carries on the legal protection of legitimacy from theoretical definition and demonstration, the law for the protection of unregistered trademark more performance as a kind of passive protection.This article analyzed the using of the unregistered trademark objection right, invalid right, more emphasis on demonstrates the unavailability before the using of the registered trademark. Here the unavailability is a right of defense first, rather than the trademark rights, it only to counter the rights to exclusive use of trademarks in the trademark registrant, the using of the prior protection of unregistered trademarks trademark registration system in China is an exception, the purpose is to balance a prior trademark use and in the interests of a trademark registrant.This paper also analyzes the unregistered well-known trademark of the trademark law, regulation, in the third change, China’s trademark law stipulates clearly the well-known trademark recognition principle. At the same time, this article also told the anti-unfair competition law "about the unregistered trademark protection is analyzed. Finally, on the basis of the unregistered trademark protection present situation, mainly aimed at China’s trademark law and the anti-unfair competition law, problems of unregistered trademark protection, puts forward some Suggestions of perfecting the unregistered trademark protection.