The Protection of Unregistered Trademarks under the Anti-Unfair Competition Law: With a Discussion on the Systemic Coordination Between the Anti-Unfair Competition Law and the Trademark Law

Abstract

Protecting unregistered trademarks is not only necessary but feasible. Although Articles 2 and 6 of the Anti-Unfair Competition Law of the People’s Republic of China currently fail to provide effective protection for unregistered trademarks due to systemic deficiencies, its legal subsumption can be enhanced by reforming the application principles of general provisions, scientifically reconstructing the notion of “unfair competition,” and adopting an open legislative approach featuring “defining unfair competition + key illustrative examples.” Meanwhile, by proactively incorporating the concept that unregistered trademarks constitute the property rights of their owners into the trademark law and strengthening regulations against trademark squatting, the application of the anti-unfair competition law can be enhanced to provide more effective damage remedies for unregistered trademark holders. This approach would increase the legal costs of squatting, thereby achieving a dual governance effect of both cracking down on and preventing such practice. By rationally delineating the logical boundaries of anti-unfair competition protection in conjunction with the registration-based acquisition system under the trademark law, this approach scientifically resolves conflicts between the protection of unregistered trademarks and registration validity rules while providing proportionate remedies and respect for the former. Consequently, it achieves an organic unity of necessity and rationality, comprehensiveness and restraint, as well as foresight and pertinence in the protection of unregistered trademarks.

Keywords

anti-unfair competition law / trademark law / unregistered trademark / systemic coordination / system reshaping

RIGHTS & PERMISSIONS

Higher Education Press