A Research Of The Substantive Similarity Principle On The Protection Of Unregistered Translated Trademark

Unregistered translated trademark is the result of localization of foreign language trademark in Chinese market.A good translated trademark is conducive to business success.Because of the extensiveness and the profundity of Chinese culture,through different translation methods,the foreign language trademark may have many translation versions which would be easily registered by others.Starting from the practical cases and analyzing relevant trademark infringement phenomena,this paper sums up the main difficulties in the protection of unregistered translated trademark:that there is controversy on the protection scope of unregistered translated trademark,whether all of the different unregistered translated trademarks which have certain correspondence with the foreign language trademarks shall be protected? Whether the other trademark translation versions that are not similar in symbol are in the scope of protection? Such as the Chinese transliteration is already registered,should we give protection to those free translation of the foreign language trademarks? Or if the free translation is already registered,what's about its transliteration form? Should the common name of an unregistered trademark be protected?These questions presented above will be discussed and solved in the following text.The protection of unregistered translated trademark in our country is not ideal,and few laws can be directly applied.Article 13 section 2,article 32 could be applied to protect the unregistered translated trademarks;Article 10 section 1(8)and other items of Anti Unfair Competition Law could be applied to protect the trademark common name.However,most of the provisions of trademark law are aimed at registered trademarks.The above provisions applied to the protection of unregisteredtrademarks have the disadvantages of one way or the other,so the unregistered translated trademarks,including trademark common names,cannot be fully protected.The lack of applicable provisions reflects the misinterpretation of theoretical issues,the core question is: whether the substantial similarity principle can be applied to the protection of unregistered translated trademarks.The principle of substantial similarity is also called the doctrine of equivalents.It applies to both patent law and copyright law.In patient law,the jurisprudence basis of the doctrine of equivalents is that the technical features indicated in the claims of the invention or utility model patent can basically achieve the same function by basically the same methods,thereby achieving basically the same effect.While in trademark,it refers to the different combinations of characters but the connotations are consistent or highly similar,which constitute substantial similarities.The trademarks of foreign language aren't same as those Chinese characters.However,both of them direct to the same enterprises or commodities and services in the form of "different forms but connotations similar".Is it possible to protect the unregistered translated trademarks based on the principle of substantial similarity? If the answer is affirmative,what extend can it be protected? The mainly obstacle to introduce substantive similarity principle is that trademark registration requires trademark symbol must be certain and sure.Article 4 of the Trademark Law writes that “Where a natural or legal person or any other organizations need to obtain a trademark exclusive right in its goods or services during its production and operation,he shall submit trademark registration application to Chinese Trademark Office”.That is if you want to obtain the exclusive right in trademarks,you must register it.The unregistered trademarks are always in an uncertain state of protection.But the actual use of the translated trademarks may have the same reference with the foreign trademarks and function as trademarks,however,they might be very different in their shapes or symbols.According to the semiotics principle,a trademark is just a symbol to some extent,including the signifier,the object and the indication.The trademark we usually refer to is actually the signifier.The function of trademark is to help relevant public and consumers identify merchants according to the trademark indication.The essence of trademark protection lies in protecting the goodwill of merchants and preventing them from being attached by other merchants.In general,the goodwill attachment is achieved through the similarity of trademark's signifier.As we discuss unregisteredtranslated trademark,it may be completely different from the foreign trademark or other Chinese translated trademark in signifier(shape or symbol),however,the trademark reference has a chance to be same with each other.Trademark infringement by using different symbols(signifier)of the translated trademarks to attach reputation or goodwill is invisible,and there haven't any clear legal evidence to regulate and control this behavior.It is recommended that the principle of "substantial similarity" be introduced into trademark law.The first chapter abstracts the problems in the protection of unregistered translated trademark and the difficulties of legal protection.The second chapter briefly defines the unregistered translated trademark and explains the necessity to introduce substantive similarity principle for the protection of unregistered translated trademark.The third chapter applies semiotics to explore the feasibility of the substantive similarity principle to protect unregistered translated trademarks.Finally solving the two major problems outlined in the first chapter by the principle.The fourth chapter is the framework of introducing substantive similarity principle to the unregistered translated trademark protection system,including the applicable standards and scopes.