International Legal Research On The Protection Of Unregistered Well-known Trademarks

In terms of the international intellectual property legal system and its practice,the first step for China to fulfill its obligations under the international treaties it has signed or concluded is to translate the relevant contents of the international treaties into domestic laws through domestic legislative mechanisms and implement them through domestic law enforcement and judicial mechanisms.In the case of unregistered trademarks,this implementation is reflected in three aspects:The first kind,the legal norms and protection mechanisms related to unregistered trademarks in all signed or concluded international treaties are translated into domestic laws(sometimes including judicial interpretation).Therefore,to study the laws and practices of unregistered trademarks in China is to explore relevant international treaties(except CPTPP).And this is true not only of international treaties concerning unregistered trademarks,but of almost all international treaties signed or concluded by China,regardless of the content covered.This is true not only within China,but even when other parties outside the country adopt the means to incorporate international treaties signed or concluded by them into their domestic or regional legal systems.This is because the international community no longer has any geographical space or territory for the application of international law(law enforcement,justice,and sometimes legislation),except for States or areas exercising national sovereignty or regional governance within a given State.How to judge a country’s fulfillment of its obligations in international treaties after its transformation or incorporation into international treaties is actually reflected in whether the implementation effect of its domestic legislation,law enforcement and justice is truly consistent or highly consistent with the content of international treaties.In addition to the international conventions on human rights,it can be tested and proved only through litigation cases.Therefore,the international significance in this paper mainly refers to the jurisdiction space including the administrative power of a specific country or region that international treaties refer to and must be equipped with at the level of implementation.Whether it is transformed or incorporated,it is talked about in the sense that domestic countries are the necessary implementation space of international treaties.Therefore,to study the legal provisions and practices of unregistered trademarks and their variants in China’s intellectual property legal system,namely unregistered well-known trademarks,is to study the international treaties on unregistered trademarks signed and concluded in China.The second kind,when a trademark registered or unregistered in the territory of a contracting party to an international treaty and its goods or services enters China,it is translated into a Chinese-dominated combination of trademark words and patterns through the language,and the overseas trademark owner has not registered in the territory of China in the converted Chinese and graphic images,China needs to provide judicial protection for the unregistered trademark generated by such translation.If it has a long-term effect in the Chinese market,it may naturally generate unregistered well-known trademarks in the sense of Chinese business practices.The third kind,when the Chinese trademark and its commodities or services in China are exported abroad,the original Chinese logo shall be translated into the common words and drawings in the import place.Considering the market cost,the new trademark formed after translation shall be registered in the local place before or in the process of export.In this case,there will be an unregistered trademark.If the unregistered time limit is long,and the goods or services have a high reputation in the local market within this period,it will naturally rise to the local unregistered well-known trademark.Considering the third case,the data is difficult to collect and inconvenient to analyze and demonstrate.This paper mainly focuses on the first and second cases,but the useful proposition extracted from this is undoubtedly applicable to the third case.Well-known trademark is an important product of market economy,which represents the economic development strength of a country or region.It can not only play the function of trademark recognition,but also bring huge economic value,and become the target of continuous cultivation and management of producers and operators.Therefore,how to protect well-known trademarks,especially unregistered well-known trademarks,has become a problem that needs to be concerned about in the trademark protection system of various countries.From the perspective of the development history of well-known trademark,the unregistered well-known trademark appeared earlier than the registered well-known trademark.The reason is that the owner of the right of the well-known trademark,out of consideration of market sales volume,early investment cost and the popularity and good reputation of the well-known trademark,has already appeared the well-known trademark in the Chinese translation form in the Chinese market,but has not registered it.However,this does not affect the association of relevant consumers between Chinese and English trademarks,which gives unregistered well-known trademarks living space in the import transition period.However,in China,well-known trademarks are classified according to whether they are registered or not and are protected by different laws.Compared with the degree of protection of registered well-known trademarks,the protection of unregistered well-known trademarks is obviously weak.It is mainly reflected in the following aspects: the protection of unregistered well-known trademarks is limited by the regional principle,and the lack of cross-class protection and anti-dilution protection of unregistered well-known trademarks.This makes the protection of unregistered well-known trademarks difficult in our judicial practice and unfavorable to the overall protection of well-known trademarks.In order to change this dilemma,in the era when registered trademarks occupy the mainstream,the unregistered well-known trademark "living space" can obtain more perfect protection.The protection of unregistered well-known trademarks in China should be consistent with the international law on the protection of unregistered well-known trademarks,and the standard of "international use +domestic fame" should be adopted to break through the regional damage of trademark right protection.It is recommended to classify unregistered well-known trademarks according to the degree of well-known,give appropriate protection to each category,clarify the boundary between anti-dilution protection and anti-confusion protection,fill the legal loopholes in the narrow scope of anti-dilution protection in the object of protection,introduce joint trademarks and defensive trademarks,and build the anti-dilution protection mechanism of China’s unregistered well-known trademarks.