Analysis About The Determination And Protection Of The Well-known Trademarks

This article discusses some problems. Concerning the determination and protection of the well-known trademarks .The article is divided into five parts.The chapter one introduces the general theory of the well-known trademarks. Through the comparison of the domestic and international the well-known trademarks concept, we can see the definition of the well-known trademarks. Combining the important composure item of the well-known trademarks, it analyzes the definition of the well-known trademarks of the existent weakness in Trademark Law of the People's of China. Through the comparison, the writer analyzes the difference and similarity of the well-known trademarks with related two concept .We define well-known trademarks as the trademark of the higher in the related public in China, from the following four aspects to define: the good reputation in China; understood only in the related public; not required higher quality; not required the registered trademark. Compared the well-known trademarks with another two different and similar of related concepts at the same time, it can explain the characteristic of the well-known trademarks clearly. The protection of the well-known trademarks contains two kinds of methodsropposite protection and absolutely protection, and it introduces extensive protection theories of other countries. Through the analysis, the writer makes the evaluation to the existent problem of each theory. Finally, we can see the necessity of the protection of the well-known trademarks through the analysis on the legal theory.The second chapter discusses the lawmaking and development of the determination and protection of the well-known trademarks. First, it introduces theinternational convention in the protective provision of concerning the well-known trademarks ,and elaborates the merits and shortcomings.Paris Convention establishes the well-known trademarks system and breaks the region theories of the traditional trademark at first time; biggest contribution of The TRIPS Agreement is the extensive protection of the well-known trademarks in the different category, and spread the protection of the well-known trademarks to the service trademark; The Consociation Suggestion extends the protection of the well-known trademarks to the business enterprise name and the domain, so it can enlargement the strength of the protection further. Then, it introduces the protective theories and the practice of other nations about the well-known trademarks, and it points out the problem and breakthrough of each theory. Finally, it introduces the development of the well-known trademarks lawmaking in our country, Through comparing the new provision with the old one, it elaborates the progress and breakthrough in the new one. The biggest progress in the new trademark method in our country is led into the judicatory system, making the determination of the well-known trademarks by the administration inspected by judicatory, in accordance with the request of the international convention. The weakness determination of the traditional mode in our country is that it disobeys the aim of the international protection; and should result in the unfair competition easily ;it can't resolve the problem in the longitude and latitude of the determination and protection in the well-known trademarks. Then the writer put forward to own suggestion: Whether we can combine the two kinds of way, avoid the weakness of one method.The third Chapter discusses how to determinate the well-known trademarks. It discusses in detail the various factors of the determination of the well-known trademark. Comparing two kinds of determination of the well-known trademarks, we can see the gains and losses of each one. This chapter focuses on the shortage of the determinate of the well-known trademarks in the Trademark Law of the People's of China, it suggests what should adopt to determinate the well-known trademarks in our country. Finally, it analyzes the determination standard of the well-known trademarks in our country and the factors of the determination that thelawmarking should be considered in detail.The fourth chapter discusses the special protection of the well-known trademarks. First, it introduces the protection of international convention of the well-known trademarks. Then, it introduces the anti-dilution theory of the United States and its practice, and it Introduces three kinds of manifestations of the dilution and analyze the important item of the behavior of the dilution. Finally, it emphasizes the special protection of the well-known trademarks. Through the analysis, it points out the existent problem in the lawmaking of our country .It points out specially that the protection of the well-known trademarks in our country is that has spread to the name of the business enterprise and the domain , but it is not made in the Trademark Law of the People's of China , and it should be listed clearly. Through analysis in detail, the writer puts forward to own suggestion: we should protect the extension of the well-known trademarks definitely with the form of the lawmaking. Though the protection of our country to well-known trademarks spreads to the business enterprise name, but the conflict is only under the conditioner' the good enough to creation confuse", protect the scope too narrow.Finally, from the practice in the determination and protection of the well-known trademarks in our country, the writer sets out the existent problems, and puts forward to the determination and protection system to perfect the well-known trademarks of our country. Such as, we can lead to the anti- dilution system and establish the defensive trademark system. On one hand, we should perfect the lawmaking, for example, we can modify Anti- unfair Competition Law of the People's of China and add the system of anti- dilution , and establish the defensive system of the trademarks; On the other hand, the business enterprise must strengthen the Consciousness of the protection of the trademarks oneself.