A Study On Legal Protection Of Unregistered Trademarks That Have "Certain Influence"

To make up for the deficiency of the trademark registration system,in 2013,the Article 59 section 3 gives legal support for the "prior use right",and the Article 7 becomes the legal support for "the principle of good faith" wrote in the Trademark Law for the first time,in the meantime,many provisions about protecting the unregistered trademarks having a certain influence have been impoved.So far,the Chinese legal protection system for the unregistered trademarks having a certain influence is forming and strengthening.But after the enforcement of the new trademark law,there are still a lot of users in the cases that asking for the "prior use right",or basing on the "prior unregistered trademark rights" to certify a registered trademark is invalid or counterfeit,is still suffering from the blow.The judges still can't accurately hold the standrad for judging the elements such as "influence","first" and "other improper means",which leads to the discretion of the referee-space is too large,and appears to common case of different judgments.Newly practices show that there is still exist many difficulties in the protection of the unregistered trademarks having a certain influence,therefore,the legal system still need to study,further refinement,and further improve.Aiming at the existing problems of the legal protection system of unregistered trademarks in China,mainly including "certain influence" in the various standards of the system is not uniform,the rules about "prior use right" lack of refinement,the qualitative of the clause call "other improper means" is not confirm,and the provisions about the principle of good faith lack of applicable instructions,it can be determined that the main improvement direction of the protection system should be included:Confirm protected status for the unregistered trademark which have " a certain influence " and set a unified minimum standard and factor system in the "Trademark Law";Refine the applicable rules of each system in our country's protection system and improve its applicability;Add the system bout explaining the intent foruse,theright for the user who use the trademark first about get the trademark right first and the mechanism about communicating and coordinating,in order to strengthen the protectionfor the unregistered trademarks having a certain influence;Improve the provisions in "Anti-unfair Competition Law",such as addthe provisions aboutpunitive damages,in the way of punishing the person who gets the registered trademark in improper means,to strengthen the protectionfor the unregistered trademarks having a certain influence.