Trademark Dilution

Compare with the traditional trademark protection model, which was based on the likelihood of confusion doctrine, the trademark dilution doctrine emphasizes much more on the protection of the goodwill of the trademark owner embodied in his trademark. Therefore, the measure of protection under dilution doctrine lays particular stress on the prevention of misappropriation of the goodwill, and the core of the anti-dilution protecteion leans to the trademark owner. This is somehow different from the traditional trademark protection mode which regards both the consumer and the trademark owner as equally important, and thus lead to a wide range of disputes. After years of judicial practice and legislative promotion, the trademark dilution theory has finally taken root and flourished in the United States, and prevailed globally under its influence. With more and more countries adopting trademark anti-dilution provisions in their legislation, and in the context of global economic integration, To understand the position of the United States, the European Community and other major developed countries which leads the tide of this change, familiarize us with the progress of this theoreotic research and judicial trendency, will play a significant role in directing China's future legislation and judicial practice.This paper firstly elaborates the oringins and development of the trademark dilution doctrine. Then it tries to explore whether there exists the similar disputes in China's judicial practice, and how does the courts response. Except for the introduction part and conclusion part, the main body of this paper consists of three parts, the first part introduces the origin and evolution of dilution theory in the United States, a process for the emergence and development of the dilution doctrine; the second part focous on the development of trademark dilution doctrine in the European Community and other regions around the world, to show the influence of this theory; and the third part investigates the response of Chinese courts when confronting with the similar judicial disputes in China by means of massive case collection and analysis.After learning the legal mechanism for trademark anti-dilution protection in the United States and the European Community, and the judicial experience in settling the disputes related to trademark dilution in nowadays China, This paper speculates on possibility and the feasibility of trademark dilution legislation in China. The author argues that the protection of goodwill is an unchanged theme lies in the historical development of trademark law, and there is no sharp confliction between the dilution doctrine and the traditional confusion doctrine. To the contrary, they are two complementary doctrines for the protection of the trademark in different historical stages from the perspective of the protection of goodwill. Although there remain some difficulties in the trademark dilution theory, and the judicial groping on the anti-dilution protection of the trade dress and the elements for determination of the likelihood of trademark dilution is still undergoing, As the "trademark dilution" has been widely recognized by judicial authority in China, and WIPO also actively promotes the trademark dilution legislation, It is necessary for China to clarify the "trademark dilution" concept via legislation. Although the pattern of the legislation may vary from the techenique perspective, and the legislators may have a number of opitions as to adopt the antidilution provisions by separate legislation, or to adopt it by including it in the Trademark Law or in the anti-unfair competition law.