Research On Legal Protection Of Unregistered Trademarks In China

The acquisition of trademark rights in China adopts the "registration acquisition principle",which means that the Trademark Law stipulates that trademarks obtain the exclusive right to use trademarks through legal registration procedures.However,in the free competition market,there are a large number of unregistered trademarks,which carry the basic characteristics of trademarks through "use",condense the labor and wisdom of unregistered trademark owners,and have enormous benefits.China has always adhered to the trademark registration and acquisition system,which adapts to China’s national conditions and meets the requirements for achieving legislative functions.However,while adhering to trademark registration,it cannot solidify nor deviate from the fundamental principles of the trademark system."The use of trademarks is fundamental to the value of trademarks,and this factor should be taken into account.Unregistered trademarks that have an impact on their actual use have a better value significance than registered trademarks that are not used,and the substantive value of trademarks is not related to whether they are registered or not." An unregistered trademark,through its own use,produces the function of identifying the source of goods or services,which conforms to the nature of the trademark and truly exerts the function of the trademark.In the context of this revision of the Trademark Law,the protection of unregistered trademarks has once again become a focus.The purpose of this article is to deeply study the legal protection of unregistered trademarks,not to intentionally increase the protection of unregistered trademarks,but to analyze the legitimacy and protection elements of unregistered trademark protection,with problems and relevant solutions.This article starts from discussing the justification of the legal protection of unregistered trademarks,and emphasizes the reasonableness of the protection of unregistered trademarks by arguing the value of the use of unregistered trademarks from the perspective of the principle of good faith,the protection of unregistered trademarks from the perspective of the principle of good faith,and the protection of the fruits of labor of trademark users from the perspective of labor property.On this basis,the specific requirements for the legal protection of unregistered trademarks in China are proposed,with clear distinctiveness,prior use,and well-known standards.Not all unregistered trademarks should be included in the legal protection.After clarifying the protection requirements,the current problems in the legal protection of unregistered trademarks have been raised.After successive legislative improvements,the independent legal status of unregistered trademarks has not yet been recognized;The recognition standards for unregistered well-known trademarks and registered well-known trademarks share a set of standards,but the scope of protection is far from each other;The remedies for infringement of unregistered trademarks have been absent,and the civil liability for compensation for infringement has not been clearly defined;The protection of unregistered trademarks is scattered under the protection framework of the Trademark Law and the Anti Unfair Competition Law,with overlapping issues and unclear protection boundaries.Therefore,based on the content of the revised draft of the Trademark Law,specific improvement paths are proposed.The top-level design should recognize the independent legal status of unregistered trademarks.The term "rights and interests" is added to the draft to signal the independent legal status of unregistered trademarks;Secondly,provide conditional cross class protection for unregistered well-known trademarks,and make certain restrictions on the cross class protection conditions;Establish a diversified approach to tort relief,clarify civil liability for compensation,establish standards for compensation for actual losses or gains,and establish appropriate punitive compensation mechanisms to protect the goodwill value obtained through the use of unregistered trademarks;Finally,in the application of legal norms,the Trademark Law and the Anti Unfair Competition Law should adopt a parallel relationship in the protection of unregistered trademarks,which should coordinate with each other and clarify the positioning of the two.