Research On The Issues Of Alienation Of Chinese Well-known Trademark

"Well-known Trademark" is the Chinese translation. This legal concept firstly appeared in the "Paris Convention for the Protection of Industrial Property". After several times of amendment, this article and "Trade-Related Intellectual Property Rights Agreement" finally become internationally accepted standards of protection of famous trademarks. The two articles provide cross-class protection to the trademarks and service marks which are identified as well-known trademark. And the scope of protection to well-known trademark is not only confined same commodity or the similar goods. The unregistered trademarks can also enjoy the same protection. The development history of famous trademarks protection of China is more than 20 years, but we should realize that we had produced some diehard alienation, that is, well-known trademarks has been a kind of "honor" and people believe well-known trademarks represent high product quality and credibility. Such phenomenon deviates from the original intention of establishment of the well-known trademarks system, and has become a weird phenomenon.This paper first describes the origin and definition of well-known trademarks. The author proposes that the well-known trademarks should not be defined by law because the well-known trademark is not a legal issue, but a matter of fact. And only when it is in need of protection, it can be identified as well-known trademark. Otherwise it will cause misunderstanding of "if some goods meet the elements of the law it will be well-known trademark". After that, the author briefly reviews the development process of the special protection system and then proposes the core point of view of this paper:Dual Value of well-known trademark protection, namely protection of private rights, maintaining market order and protection of public interests. The author also analyze the internal mechanism of the two kinds of protection and then point out that the dual-value goal is not on an equal footing of "double seat". The purpose of private rights is the starting value and the ultimate purpose of public power is the final goal. However, the value of the dual-value goal must be balanced of on the institutional framework so that it can ensure the realization of the value of public and private. Otherwise it will lead to the loss of both public value and private value.Well-known trademark has many forms of alienation. This paper firstly analyzes the alienations from the establishment of protection of the system of well-known trademark. Then the author discusses the performance of well-known trademark alienations from the following four aspects:pattern of affirmation, standard of affirmation, special protection and social systems.The author introduce the alienations from the perspective of well-known trademark protection system of the United States, France and Japan and propose the active aspect which should be taken example by China. For example, the United State provide more abundant protection to the well-known trademarks, France has the invalid rights system to reduced the cost of the registered trademark, Japan has defense system and the court can help people to solve the conflict of well-known trademark between companies and in the law of Japan the company name contains two part: "name" and "property rights".How dos the alienation of well-known trademarks appears and why it is very hard for us to control the alienation? The causes of such phenomenon can be described as extremely complex. This paper try to analyze this problem from the system, the social, business and political to explore the real reason for the alienation of well-known trademarks. For avoiding of the alienation of well-known trademarks, executive and judicial branches of our country have adopted many measures. However, the trend of well-known trademarks alienation has not been reversed. Finally, in order to achieve the special protection of famous trademarks in the rational regression, the author deems that we can not only emphasize the return of the trend and to use some radical measures. It will intensify the contradiction. And we should take measures step by step. So the author propose positive and secure measures in the following six aspects:establishing a correct concept of well-known trademarks, improving standards of well-known trademark refinement, strictly regulate the manner well-known trademark to reconstruct well-known trademark special protection system, improving the government's well-known trademark management policy, regulate the use of business-to-well-known trademarks. The most important one is to eliminate the misunderstanding of well-known trademarks, and to establish a correct concept of well-known trademarks.