| As an important type of intellectual property, the trademark is playing a more and more important part in the National economy and enen in international trade. Viewing from the current situation of the system of trademark law, at the levels of the internatioanl law and the domestic law , the trademark protection levels are far higher than that of the trademark restrictions, which has created a situation in which the trademark protection is attached more importance and the trademark restrictions are relatively ignored. In this thesis, the author adopted a comparative approach to study the Europe and US law system in terms of trademark restrictions. A detailed analysis of the related institutional arrangements of the Europe and the United States as well as some typical cases are presented in this thesis. With regard to the trademark restrictions, the author learns from the Europe and the United States in terms of legislative and judicial experience, aiming to construct our national law system on trademark restrictions in the macro-perspective, and to design some specific trademark restrictions in the micro-perspective. Hence, our national law system on trademark can be further improved. This essay can be sub-divided into 6 chapters, consisting of nearly 150,000 words. In this essay ,various trademark restrictions are compared ,studied and summarized. In the sixth chapter, several suggestions are provided in the construction of our country's trademark- restriction law . A brief introduction about each chapter is given as follows.The first chapter mainly discusses some theoretical issues related to trademark restrictions. It shows that the restrictions to the trademark rights lie in that ,when protecting the benefits of the consumers, competitors as well as other public interests, the law lays instrictions on the trademark owners. Because of its special nature, the trademark is more closely linked with the market,competition, compared with other types of intellectual properties. Coupled with the current situation that the present multinational companies and some state-owned enterprises have an aboslute dominance, it is quite necessary to perfect our national trademark law systems. The author believes that the restrictions to the trademark rights could be divided into three categories, namely, the "Trademark Law" constraints, "Unfair Competition Law" limits and "Anti-trust law," restrictions. At the same time, our country are still relatively weak in the study of the trademark- restriction law. According to this situation, the rich experiences from Europe and the United States in legislative and judicial areas are offered in this chapter,which is worhty of our in-depth study . In the second chapter, a comparative study towards the fair use system of the trademark of the United States and Europe both is theory and practice is carried out. And the fair use of the trademark is further put into three categories,namely, the first one is the the fair use of descriptive trademark, and the second is the fair use of the indicative trademark,and the third one is the fair use of trademarks in comparative advertising. In terms of fair use of the trademark system, the United States divides it into classic fair use and nominative fair use. That is to say , they are descriptive trademark and the rational use of indicative trademark. While in the"First Council Directive 89/104 EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks"and the"Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark", the European Union clearly stipulates that there are three types of fair use. The first two of which mainly can be applied to the descriptively fair use of the trademark, while the third one mainly can be put in use in the indicative case of trademark fair use. In addition, in legislative and judicial practice, both the United States and the European Union regard that comparative advertising is one of the most effective ways to promote competition, increase consumers'wealth, therefore, they take positive attitudes in comparative advertising and have made some special rules tailored to the comparative advertising, such as the U.S. FTC Act and the European Union's"Comparative Advertising Directive", which established the rules of the fair use of the trademark in comparative advertising.The third chapter mainly focuses on the different approaches that the United States and the European Union have adopted when dealing with the issue of parallel importation of trademark products. The United States mainly dominates theprinciple of domestic exhaustion of trademark rights, at the same time, it regulates several situations which practises the principle of international exhausition of trademark rights. It mainly includes that the trademark products with"commom control and common ownership"can be parallely imported. In addition, the United States Lever Rule also reveals that parallel importation is not a simple application of the principle of exhaustion of trademark rights, the parallel importation of trademark products should be specifically analysed based on the basic characteristics of the trademark as well as the fundamental purpose of the trademark law. While the EU maintains the prupose of a unified common market, within the EU, it applies the principle of international exhaustion of trademark rights,which allows and even encourages parallel imports.While as for outside the EU,the parallel importation parallels to the internal of EU has aroused several debates,but it still fails with negative attitudes taken. There are two occasions where the parallel importation of the trademark products between external and internal EU should be permitted. First ,the case of the prior agreement(implied consent) where there is no limit to the resold products is considered as an exception . Second, if it aims to segment the EU market, the prevention of the trademark parallel importation ouside the EU, by agreement or concerted practice , is regarded as illegal.The fourth chapter, the abuse of the trademark right is analyzed . Moreover, in terms of the principle of the trademark misuse of the United States as well as EU'legislative and judicial experience in regulating the malicious trademark acts, they are compared and analyzed. Trademark misuse include the behaviors of trademark monopoly and other behaviors of unfair competition. Besides the behaviors of trademark monopoly, trademark misuse mainly lies in genericide, misleading in trademark, abuse of suit, reverse domain name hijacking, etc. Both in United States and in Europe Union, there are two ways to govern genericide, one is to make the trademark invalid, and the other is declaring genericide as one of the defence in trademark suit. Trademark misuse of the United States is one major feature of the trademark system, and the trademark misuse principle regulates those dishonest , misleading market behaviors using their trademark rights. At the same time, according to the fairness of equity principles , the United States prohibits the improper legislation behaviors through their trademark rights. While EU mainly features in defining the "bad faith" behavior in terms of trademark registration, and it regulates the improper behaviors, according to the invalid system of trademark cancelation and the declaration of the invalid trademark in the trademark law. In regulating the behaviors of reverse domain name hijacking, UDRP as well as the "Rules" have played very important part, but they are relatively inefficient in the remedy measures. However, the ACPA of the United States has some supplementary roles in terms of these aspects. Therefore, to regulate the behaviors of reverse domain name hijacking, the forms that the United States have taken by combining the UDRP with the ACPA together are worth learning.In the fifth chapter,on the issue of the anti-trust of the trademark of the United States and the European Union, a comparative study about the related systems and the judicial cases is presented . With regard to the system of anti-trust on the trademark, the court in the United States has taken more and more serious attitudes towards the judgement of the trademark monopoly. And even there exists the view of non-existent trade mark monopoly. However, In the 60s and 70s of the last century in the United States, there emerged some fixed monopoly cases which made use of trademark. Although several typical cases had been overturned by the Supreme Court in the 90s, this still showed it clearly that the trademark monopoly indeed existed. Actually, it is possible that the trademark owners make use of trademark to monopolize the market. While as the brand power of the United States, its ambiguous attitude on this issue naturally is closely associated with its needs of the international expansion of intellectual property. While the restriction on the trademark monopoly that EU has adopted is more rational compared with the United States. Firstly, EU has taken an affirmative attitude towards the trademark monopoly, which can be seen clearly fom the defeat of the Microsoft in the European Union. Secondly, on the issue of the trademark monopoly, the EU still insists on effective competition to promote an unified market, and regulate it with the aim to enhance consumers'benefits and welfare. Finally, although there are no specific supporting documents to trademark and anti-trust, in the Treaty, the competition law included in Article 81 and Article 82 is the principal acts regulating the monopoly of the trademark. The Court of Justice also has explained it in some typical cases related to competition law in the 81st and 82nd acts.In the sixth chapter , according to the status in China and legislative and judicial experience of Europe and the United States, the system of trademark restrictions should be improved in the following areas.Firstly, for the restrictions in the Trademark Law. As for the system of the fair use, the provisions of nominative fair use should be included in the Trademark Law. And"the fair use"in the 49th act included in the"Implementing Regulations of Trademark Law"should be made more specified. At the same time,the system of fair use of trademark in comparative advertising should be established. The rules of the United States on Trademark Parallel Imports are more worth our study and , so it is suggested that prohibiting the parallel import should be taken as the basic principles in terms of law and administrative regulations, and some certain exceptions should be set up.Therefore, it not only is accordance with China's attitude towards the rule of Parallel Imports, but also increases the flexibility of legislation and is helpful to the multi-stakeholder coordination among the state, enterprises and consumers.Secondly, for the restrictions in the Unfair Competition Law. It should be clear that genericide is illegal, and definite it as one of the loss of the trademark right. At the same time, it is important to make provisions to govern behaviors of registering trademark with bad faith, misleading consumers, and abuse of the right in suit, etc.Besides the UDRP and the rules, some related national rules should be established to regulate reverse domain name hijacking.Finally, for the restrictions in the Anti-trust Law. On the issue of trademark anti-trust, China should first of all make sure that the trademark monopoly behavior is one of prohibition by "anti-monopoly law". In the second place, when dealing with the monopolistic nature of the intellectual property rights, in the determination of trademark licensing agreement related to the monopolistic nature, the reasonable standard should be applied aiming at the characteristics of the intellectual property and put emphasis on regulating the trademark license agreement of franchising. In addition, setting up a system to regulate the behaviors of abuse of a dominant position in markets by the use of trademarks, such as: charging unreasonable licensing fees, monopolizing by the refusal to grant permission,etc.
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