On The Necessity Of Treating The Unregistered Trademark As Rights

Since the <trademark law> was issued, the legal system of trademark law of our country has made a big advance. But under the system of registered-trademark-centered, the system of acquisition-through-registration gradually reveal its weakness. The rush-registered behavior emerges one after another. That is because the study on the unregistered trademark is not enough mature. On the other hand, our present law has its disadvantage on the protection of unregistered trademark. This essay will focus on the well-known unregistered trademark and the influential trademark to discuss the necessity of treating the unregistered trademark as rights.The first part evaluates the present law system of the protection of the unregistered trademark. At first, it’s not clearly that the legal status of the unregistered trademark from the <trademark law>. Then the <Anti-Unfair Competition Law> is the main basis as protecting the unregistered trademark. It draws conclusions from those that there are two hindrances for the unregistered trademark to be treated as rights:the weakness of the acquisition-through-registration and the pattern of protecting the unregistered trademark as a kind of interests. It discusses reasonability and necessity of the acquisition-through-use with the theory of the essential of the trademark and the experience of the other countries and regions. Our legislation should assimilate the acquisition-through-use to admit the right of the unregistered trademark. Secondly, this essay enumerates some weaknesses of treating the unregistered trademark as a kind of interests from the perspective of the relationship between the rights and interests. The theorists provides three standards such as the "location function", the "exclusion function", the "typical social obviousness" which are from the theory of distinction to prove that unregistered trademark can be used as rights. That’s the reason why the influential trademark should be used as rights and the fact that the influential trademark possesses the conditions which can be seen as a right.The last part summarizes the viewpoint,and comes up with some suggestions to perfect the system of the protection of the trademark rights. Just like, redefine the concept of the trademark rights, admit the legal status of unregistered trademark and the conditions of protection of it. What’s more, changing the present system of acquisition-through-registration and emphasizing on the function of use is the measure to admit the unregistered trademark’s owner can obtain the trademark rights through using.