How are Unregistered Trademarks Protected in China?

Abstract

As in most civil law countries, registration is the only way to acquire trademark rights in China, and the protection of unregistered marks remains a marginal issue. However, companies always have considerable interests in the protection of their unregistered commercial signs. Problems with trademark piracy and passing off regarding unregistered trademarks in China have drawn attention throughout the world. Besides the absence of spontaneous market order, defects in the current trademark and competition law systems are the main reasons for this problem. The bona fide principle, as incorporated in the PRC Trademark Law, is applicable only to piracy of those trademarks that have been used in China and are known to the relevant public. The action of passing off in the PRC Anti-Unfair Competition Law does not cover unregistered trademarks as it stands, and they can only benefit from this protection by being disguised as a product name, packing or decoration. The protection of well-known trademarks is nearly unavailable because the fame requirement is too high. The last revision of the PRC Trademark Law improved the current regime by enlarging the scope of application of the bona fide principle in trademark law. However, we still need to give a clear status to unregistered trademarks in anti-unfair competition law, and Chinese courts should lower the fame requirement in the recognition of well-known trademarks.