The Identify And Protection Of "substantial Influence" Unregistered Trademark

The Trademark Law of China gives only some protection to the unregistered trademarks. In the resent decade, on behalf of protecting the unregistered trademark with "Substantial influence" two provisions(Trademark Law Article 32 and Article 59 paragraph 3) were included in the body of the Trademark Law. It is obvious that the protection of unregistered trademarks in China draws more and more attention, and that the corresponding legislation is being gradually improved as well. However, under the current trademark law the interpretation and application of the unregistered trademark with "Substantial influence" is not particularly clear, there for it has not been able to form a complete protection system.In judicial practice, there is also a controversy about the large number of cases involving unregistered trademark with "Substantial influence". For the courts of different levels interpretation of this issue is very different, that’s why it is necessary to unify the knowledge and experience of different courts on this matter.In this paper, unregistered trademark with "Substantial influence" stands as the starting point, on a way to understand "Trademark Law" through the scope of protection of unregistered trademark with "Substantial influence", and also to determine what kind of unregistered trademarks should be protected in general.Through the analysis of the actual cases, we researched existing legislative problems relating to the unregistered trademark with "Substantial influence". At the same time we rendered domestic and foreign related legislative theories, pointed out the existing legislative deficiencies, with curtain suggestions for improvement.Current paper is divided into three chapters. The first chapter reveals curtain problems, combined with typical case study of the application of the relevant law in the judicial practice; questions that arise because of these problems, and discusses the reasoning of the courts as well. At the same chapter the unregistered trademark with "Substantial influence" is defined, as well as the scope of the article discussion. The second chapter discusses the unregistered trademark with "Substantial influence" from the definition to the identification factors, in combination with the relevant articles of law, theory and doctrine foreign legislation and determines the identification criteria. Same chapter also demonstrates the comparative analysis of "Trademark Laws" Article 32 and Article 59, paragraph 3, combined with existing case-specific application the question whether or not the definition of "Substantial influence" should be given in this article. The third chapter holds some proposals for protection of the unregistered trademark with "Substantial influence", referring to existing theories and foreign legislation, brings forward some suggestions to improve domestic legislation. Also includes recommendations for partition of unregistered commercial signs, and provides a basis for the establishment of identity protection system for the unregistered trademark with "Substantial influence".Due to limited space of this article, the research on "unregistered trademarks with a certain influence" is limited to their identification and protection, while other aspects of this topic cannot be deeply covered. But this article from the beginning, step by step demonstrates the content of "unregistered trademarks with a certain influence" from which you will be able to understand the various aspects of this topic.At the same time, author tried to reflect on "unregistered trademarks with a certain influence" from the higher angle, to understand the unregistered trademark "have a certain influence," this paper makes a comparison of "unregistered trademarks with a certain influence" with other unregistered logos with known repute for the purpose of seeking legal protection from the relevant jurisprudence on the basis of spirit of law, aspirin to get inspiration from other relevant legal documents as well. In this paper, a large number of judicial cases, scholars’ researches, on the theory of trademark law and foreign legislation, brought for the purpose of understanding the problem from all angles the set of problems the "unregistered trademarks with a certain influence" are currently facing; as well as trying to give a solutions to that problems. Also accounting some advanced experience, curtain solutions for the existing problems are being proposed.Chinese "unregistered trademarks with a certain influence" trademark law had recently come to existence, and there is still very long road ahead, not only the legislation requires improvement, but application of the law also itself needs to be enhanced. As can be seen from the existing juridical practice, for the courts of different levels, exists the different interpenetration of the law, and even exists a significant discrepancy between some precedents within the same court. In the future, we not only need to build a more complete legal system, but also need to further enhance the level of justice, because although a there is a certain amount of miscalculations, but the hidden unity of jurisprudence should take its place.