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Research On The Tort In Trademark Dilution

Posted on:2004-06-27Degree:MasterType:Thesis
Country:ChinaCandidate:M J JiangFull Text:PDF
GTID:2156360122985195Subject:Law
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Trademark dilution is to reduce or weaken the notability of famous trademarks and make damages to the reputation. The theoretical basis of trademark dilution is association, which means consumers always associate a famous trademark with a specific commodity. Trademark dilution damages this association and the more famous the trademark is, the easier it will be diluted. There are three specific forms of dilution, that is weakening, defaming and deterioration, and all these are based on non-obscuration existence. Trademark dilution can decrease the social attraction and values of trademarks, and further undermines the competitive market environment. The initial function of trademarks is to distinguish sources. With the commodities become more and more rich, trademarks also demonstrate characteristics and can become independent property. Trademark rights depend on some specific product, including the right to use the trademark and to prohibit others to use it. The standard for prohibition is whether it will cause confusion or misunderstanding. The rights of owners over the reputation and social property on trademarks are not included in trademark rights, while it is civil property rights. The objection of dilution is the absolute notability of trademarks and the reputation of owners. The consequence of tort is the reduction of values on the trademark. Therefore, the basis of the standard of dilution is not confusion. The objection infringed by dilution is not trademark rights, but normal civil property rights and thus the specifications of trademark infringing can not be applicable. Dilution causes damages to the rights of trademark owners, business persons in the same industry and consumers. Anti dilution can proceed from not only civil infringement but also unfair competition. Dilution is legal in trademark laws, but it harms civil rights. Anti dilution is the balancing choice between trademark rights and normal civil rights. Anti dilution is a kind of special protection to famous trademarks, and is applicable to identification and effect regulation of famous trademarks. It is not simply the protection to famous trademarks. However, it is an exception in normal famous trademarks protection.Trademark dilution, as a kind of tort, has constitutive requirement. First of all is the fact of damages. Although it is very difficult to quantify the actual damages, the consequence of damages shall exist in the composition. The prerequisite of damages is the absolute notability of trademarks. Secondly is the violation. This violation is to use trademarks that are the same or similar to famous ones on different commodities. Since it is common infringing act, the subjective requirement is the action person has faults. However, because of the characteristics of producing evidence, it is more reasonable to define as putative liability for faults.The theory of trademark dilution is having been internationally concerned nowadays. A lot of countries have formulated their anti dilution laws with different forms. International organizations have also established anti dilution theory step by step and enhanced protection through all kinds of treaties. China is on the way to perfect legislations in this field but still has oversights and contradictions, which make it difficult for real operation. It is probable to in China to combine unfair competition and intellectual property rights protection,and impose protection and remedies comprehensively to ensure effective protection. And it is important for an enterprise to pay attention to the notability and unique characteristics of trademarks, and enhance trademark consciousness. Furthermore, we shall also originate and protect trademarks and thus develop the values and functions of trademarks.
Keywords/Search Tags:Trademark
PDF Full Text Request
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