The Research Of Protection Path About Legal Protection For The Popular Name Of Trademark

The popular name of a trademark refers to the general and informal title of a certain trademark named by the public. The public usually come up with this kind of popular name to memorize and for other reasons while the trademark owner will not use it. There are many examples of such popular name, for example, the trademark of “C-type vine flowers” named as “flower of Paris” and the official translation of “LAND ROVER” should be Chinese characters “Lu hua” while the public used to call it “Lu hu”.These popular names cannot affect the interests of trademark owners, but to some extent, will promote their publicity to obtain greater business value. However, some unscrupulous businessmen use these popular names to apply for registration from the Trademark Office. In judicial practice, the court, usually adjudge these third parties win the case due to “prior application”. However, this approach will inevitably lead to two kinds of unfair phenomena. Firstly, these third parties make use of the fixed relation between the popular name and the original trademark owner to take the advantage of the reputation accumulated on the goods. Secondly, it will cause the consumers’ confusion about the source of goods and disrupt the normal market orders. Thus, the issue that always to protect “prior application” or protect the relation between popular name and the original goods is under heated discussion in the academic area. Besides, even scholars who advocate protecting the relation between popular name and original goods show different views to the paths. In order to better address these issues, it is very necessary to discuss the problem of legal protection of trademark.This article is divided into three chapters:In the first chapter, the author brings up with the issue. This chapter is mainly divided into three parts. In the first part, the definition, type and basic characteristic of trademark popular name will be introduced and define the undefined legally concept. In this part, in order to discuss the protection of popular name more specifically, the author, according to the popularity of popular name, classifies the popular name into three categories: well-know popular name of trademark, influential popular name of trademark and ordinary popular name of trademark. In the second part, the judicial practice of present protection of popular name in our country will be introduced. The protection of popular name of trademark is the typical issue proposed from judicial practice to theory. Therefore, the author types through the cases of recent years to find out the situation of the protection of trademark popular name in our country. Although usually these registrants will be protected due to “prior application” in the judicial practice, it causes the consumers’ confusion about the source of goods and disrupt the normal market orders. It is unfair to always protect the interest of these prior applicants. So under some conditions, it is essential to ban the prior applicants to register and use the popular name of trademark. In the third part, the author discusses the controversy about protection paths of trademark popular name from the perspectives of popular name users, protection path and so on. The protection paths include the Trademark Law and Anti-unfair Competition Law. It is because of the academic dispute on these issues makes this research appears to have practical value and significance, and also the focus of the writing of this article.Through the analysis of this chapter, the basic conclusion is: trademark popular name has the only fixed relation with the original goods. Although the third parties get the “prior application”, in view of the relation between popular name and the original goods and customers’ recognition of this relation, it inevitably harms most of the people if we always protect the interests of the third parties. Therefore, it is necessary to prevent the popular name from being registered and used by these third parties. However, according to the classification of popular name, the method of protection should be different and can not be generalized of each type of popular name. So, it eventually concludes that the protection is essential but which method to take still needs further argumentation.In the second chapter, the author discusses the research about the protection path of the trademark popular names. The academic area fastened most of their attentions on the trademark law. This chapter is mainly divided into three parts. In the first part, author thinks about the unregistered trademark. It’s feasible according to the Trademark Law in some cases, but most of the time, it doesn’t seem so plausible. The reasons are, firstly, trademark rights are acquired through registration in our nation, none may acquire trademark rights without registration. Secondly, social public use can not produce the trademark rights, which is not feasible according to the prior user’s rights. Thirdly, some scholars suggest that we can use unregistered well-known trademarks or “other undesirable effects” to protect them, but they lack basis whatever in system or comprehension. Therefore, author thinks it can not be protected from the Trademark Law about these popular names. In the second part, the Anti-Unfair Competition Law can protect these popular names complementally because of the special relationship between it and the Anti-Unfair Competition Law. What’s more, these third parties’ behaviors harm the interests of the consumers, which are unfair Competition. The behavior, according to the Anti-Unfair Competition Law, is counterfeiting which can be regulated by The Anti-Unfair Competition Law. So the protection path is the Anti-Unfair Competition Law. The third part is overseas investigations of protection path about trademark popular name. To start with, the author will show the justice practice concerning the protection of trademark popular name in America. In the beginning of the last century, there have been such behaviors in the United States. With the growing number of precedents, we can find that the popular name is protected in the Anti-unfair Competition Law in America which can provide us some useful suggestion. By analyzing the justice practice of America, we can make the choice of the Anti-Unfair Competition Law protection more convincing. Then, the author learns certain provisions of new Anti-Unfair Competition Law from German, trying to advance the ideas about the protection path of popular name of Trademark. In German’s new Anti-Unfair Competition Law, the producers whose products were imitated have omission and compensation claims when the source of cheating can be avoided. The German scholars pointed out, the source of cheating actually also can damage the consumer’s interests, however, if the producers don’t exercise of claims for various reasons, the consumer’s interests will not be protected. Therefore, it will be necessary to endow the consumers with the omission and compensation claims. Through the analysis of this chapter, the basic conclusion is: because the trademark popular name is not registered, it can be protected by Trademark Law when the trademark is similar to the popular name. But most of the time, protection according to the Trademark Law is unreasonable, and it is feasible to use Anti-unfair Competition Law to protect the popular names of trademark.In the third chapter, the author discusses the research about the concrete proposal of the protection of trademark popular name. It is feasible to use Anti-unfair Competition Law, and the concrete proposal of the protection is subject to some debate. This chapter is divided into two parts, in which the author analysis the constitutive requirements of unregistered and well-known popular name, unregistered and influential popular name when they make use of special names of famous commodity protected mode, and the premise of other types if they make use of anti-unfair competition general terms protected mode. Through the analysis of this paper, the protection should through the following ideas: according to the unregistered and well-known popular name, unregistered and influential popular name, protection mode through special names of famous commodity; for the general popular name of trademark, if it can meet the application conditions of the general terms, make use of the general terms protected mode; otherwise, no protection.