The Research On The Legal Protection Of "Substantial Influence" Unregistered Trademark

The legal protection of unregistered trademarks is a universal problem in the trademark market of all countries.In China,based on the perfection of the current trademark system and the restraint and reflection of the phenomenon of malicious trademark squatting in the market,the problem of unregistered trademark protection began to receive attention from the theoretical circle and was widely discussed.Unregistered trademarks can be classified into ordinary unregistered trademarks,"influential" unregistered trademarks and unregistered well-known trademarks according to the standard of trademark popularity.As for the legal protection of unregistered well-known trademarks,China has made clear and specific provisions in the trademark law.In judicial practice,there are also many typical cases that explain the specific application of the protection clauses of unregistered well-known trademarks.However,for ordinary unregistered trademarks,due to their lack of significance,influence and trademark value,it is difficult to be the object of legal protection.Therefore,this paper only selects "influential" unregistered trademarks in unregistered trademarks as the research object of this paper.This paper mainly USES the legal hermeneutics,historical research,comparative research,legal economics and empirical analysis and other research methods to discuss the legal theory and judicial practice of "legal protection of unregistered trademarks with certain influence".The paper is divided into three parts: introduction,text and conclusion.The text has four chapters.The first chapter of this paper mainly sorts out and analyzes the basic theories of "influential" unregistered trademark protection.The first section of this chapter expounds the basic concept,legal status and the difference between "influential" unregistered trademark and registered trademark.The second section discusses the legitimacy of "influential" unregistered trademark protection from the perspective of the identity of the nature and function of registered trademark and "influential" unregistered trademark,namely the theoretical basis of "influential" unregistered trademark legal protection.The third section elaborates the practical significance of "influential" unregistered trademark protection based on the history of trademark development and the current market situation.On the one hand,we should fully respect the registration willingness of trademark users and maintain the order of free competition in the market.On the other hand,the interests of trademark and goodwill actually generated in the use of "influential" unregistered trademarks should be protected.The legal protection of "influential" unregistered trademarks and the regulation of infringement are the embodiment of the value of fairness and efficiency,as well as the realization of the balance of interests and the unification of administrative justice.The second chapter mainly discusses the protection conditions of "influential" unregistered trademarks and the criteria for determining the conditions.For the protection of "influential" unregistered trademarks,this paper proposes to provide limited protection on the basis of the current trademark registration system,opposes excessive expansion of the rights of unregistered trademarks,and strictly limits the scope and conditions of unregistered trademarks that can be protected by law.The unregistered trademark can only be protected by law if it meets three conditions: the trademark can be registered,the trademark can be used first,and the trademark has certain influence.The second and third sections of this chapter further discuss the criteria of trademark's prior use and certain influence,and detail the protection conditions of unregistered trademark.The third chapter USES the method of comparative study to sort out the provisions of "having certain influence" on the protection of unregistered trademarks overseas.Based on the different historical evolution and basic national conditions in the development process of the trademark law of major countries outside the region,this paper investigates the different characteristics of the "influential" unregistered trademark legislative mode and protection method of major countries in the Anglo-American law system and the continental law system,and analyzes the typical cases outside the region.The first section of the fourth chapter elaborates and analyzes the provisions of Chinese laws on the protection of "influential" unregistered trademarks.The second section examines the problems of trademark squatting in China's current trademark market and analyzes the legal loopholes behind the problems and the identification standards of subjective elements of squatting.The second section clarifies the cognitive basis and improvement goal of "influential" unregistered trademark protection,advocates more explanation than criticism,and combines theory with practice.This paper argues that while adhering to the trademark registration system,we should further clarify the legal concept and legal status of "influential" unregistered trademarks in the trademark law,strengthen protection and regulate the phenomenon of squatting.In addition,the burden of proof for users of "influential" unregistered trademarks should be appropriately reduced,and the malicious registration of trademarks should be curbed by improving the penalty system,so as to protect "influential" unregistered trademarks more effectively and reasonably.