Research On The Protection Of Rights And Interests Of Unregistered Trademarks

The report of the 20 th National Congress of the Communist Party of China pointed out that it is necessary to strengthen the legal protection of intellectual property rights and accelerate the construction of an intellectual property power.As an important object of intellectual property protection,trademark plays an important role in the production and management of civil subjects.But under the background of trademark rights registration system in our country,there are a large number of unregistered trademarks in reality for various reasons.What kind of protection should be given to the rights and interests of these unregistered trademarks is a problem that cannot be ignored by law.Under the existing unregistered trademark protection system,the identification of "malicious intent" of trademark registration is still vague,resulting in the act of malicious trademark registration has not been effectively regulated.The narrow scope of the protection of unregistered well-known trademarks leads to the malicious use of the restrictions on the category protection of unregistered well-known trademarks in practice,applying others’ unregistered well-known trademarks to similar goods,diluting the significant features and influence of unregistered well-known trademarks,and even belittling their reputation.In the protection of unregistered trademarks with certain influence,there is a lack of clear standards for the identification of "prior use" and "certain influence",which leads to confusion in practice.In addition,there is also a lack of effective regulation on the confusion caused by unauthorized use of such trademarks.In the protection of unregistered general trademarks,the scope of some specific relationships is vague,and it is not clear whether and how to regulate the behavior when a specific party uses the trademark of the owner of the unregistered trademark in its business without authorization.In order to improve the protection of the rights and interests of unregistered trademarks,we can base on the international perspective,learn from the important role played by the "counterfeiting lawsuit" in Britain and the United States and the "Anti-unfair Competition Law" in Germany and Japan in the protection of unregistered trademarks,and refer to the recognition of "bad faith" of trademarks registered by other countries and the protection provisions of unregistered well-known trademarks.On the basis of the existing protection system,the "malicious intent" of the registered trademark is regarded as a value judgment,and the inherent significance of the trademark and the relationship between the squatters and the rights holders are further identified comprehensively.In the protection of unregistered well-known trademarks,the scope of protection of unregistered well-known trademarks is expanded,and the provisions of conditional cross-class protection are added to its protection.In the protection of unregistered trademarks with certain influence,the "prior use" and "certain influence" are clarified,and at the same time,the relevant provisions of the Anti-Unfair Competition Law are improved to effectively regulate the unauthorized use of such unregistered trademarks that cause confusion.In terms of improving the protection of unregistered ordinary trademarks,it clarifies the scope of "specific relationship" in Article 15,paragraph 2,of the Trademark Law,and clarifies the regulation of unauthorized use of trademarks by "specific related parties" from the perspectives of good faith and anti-unfair competition.