A Comparative Study Of The Scope Of Trademark Rights

With the rapid development of mass media and prosperity of international trade, the value of trademarks, as the intangible asset of an enterprise, is increasing steadily. In the 21st century, the most powerful tool of competition of an enterprise will certainly be trademark. As a special sign of distinction and status, as well as a cultural phenomenon, trademark is playing a role more and more important in our life. Trademark, in particular famous mark, is a sign of great importance. In a world full of competition, the trademark protection concerns the existence and development of an enterprise or even of a nation. This thesis is expected to give a useful frame of reference for the revision and improvement of our country's trademark law by comparing thoroughly the legislation and practice concerning the scope of trademark protection among countries.Besides introduction and conclusion, this thesis includes four parts. The first part delimits the scope of trademark protection on the basis of confusion preventioa The traditional trademark protection mainly focuses on products itself and the distinctive function of trademark, i.e. the natural attributes of trademark. The trademark right is a right of occupation in nature. It should be prohibited if others use a trademark where there is a likelihood of confusion with the trademark of a prior owner.The second part delimits the scope of trademark protection on the basis of prevention of association. This part analyses the significant evolution of trademark function in the background of the intense competition: Trademark is of social attributes because it can not only distinguish the source of products, but also serve as the important means of symbolizing the status or character of consumer and has became a magnetic force to attract the customers. Therefore it is necessary to shift from the simple prevention of contusion to the prevention of association and dilution in order to protect the right of creation.The third part delimits the scope of trademark protection from the angle of limitation of rights in order to prevent the negative effect on economic development due to the excessive scope of protection. This part deals with fair use, comparative advertising, exhaustion of right and restricted competition.The fourth part analyzes mainly the legal responsibility of infringement, including objective and subjective requisites of infringement, jurisdiction, limitation, evidence, as well as civil, administrative and criminal penalty.This thesis aims at surmounting limitations of traditional theory on trademark protection based on confusion prevention and absorbing the latest doctrine and practice in the world by analyzing the evolution of modern trademark function, the appearance of well-known and famous marks, the success and the failure of system of associate trademark and defensive trademark, so as to explain thoroughly the doctrine of confusion and association and provide a theoretical basis for a more comprehensive and powerful trademark protection.The main viewpoint of this paper is that in case of the evolution of trademark function, it is necessary to adjust the trademark protection doctrine, i.e. preventing not only confusion but also association, or strong protection for strong mark, weak protection for weak mark. In the meantime, fair competition should also be protected by preventing the strong mark to obtain and maintain a monopoly position using trademark protection It is indispensable to limit reasonably the trademark right in order to leave a sufficient space of existence and development for the posterior mark.By studying the reasonable delimitation of scope of protection of trademarks especially famous marks, this paper aims at encouraging and awarding more enterprises to create better products for society, preventing the abuse of right of the trademark owner, eventually protecting consumers' interests, and promoting the continuous and healthy development of social economy.