Research On Trademark Anti-dilution

The dilution of trademarks is a behavior of reducing or weakening the discernment and markedness of well-known trademarks and famous trademarks, and a behavior of damaging and contaminating the credibility of these trademarks. The dilution of trademarks is a kind of damaging famous or well-known trademark's behavior which is very distinct from the traditional trademark infringement. This makes the anti-dilution protection activity for the famous or well-known trademarks to be especially urgent and essential. Commenced with the concept, classification and profile of trademark dilution, this paper discusses the nature of trademark dilution and its great harmfulness. In view of the actuality of overseas trademark anti-dilution research, the paper addresses the existing problems in the Trademark Anti-dilution Theory, and sets forth the Chinese current elaboration on the Trademark Anti-dilution Theory and the practical requirement accordingly. Finally, the paper views the necessity of China trademark anti-dilution legislation as well as the legislation choice tropism issue. After China entered WTO, it is especially important to make research on the Trademark Anti-dilution Theory and the trademark dilution legislation. The law can not but make the corresponding revision to adapt the global game rules.This paper is divided into three chapters:First, starting from the trademark dilution outline, the paper analyzes the meaning, the classification and the profile of the trademark dilution. The paper carries on a profound analysis on the nature of the trademark dilution and the great damage that the trademark dilution brings to the trademark owners, the same competitors, the consumers and the public interests. Regarding the nature of the trademark dilution, different conclusions can be obtained depending on different observation perspective. From the trademark owners' point of view, the trademark dilution is one kind of infringement to the trademark rights; Talking from the trademark dilution doer, the trademark dilution is one kind unfair competitive behavior. The unfair competition usually exists between the trademark dilution doers and the other businessoperators in the same business with the trademark dilution doers. From the general consumers and the public's interests perspective, the trademark dilution is one kind of overpassing behaviors. Therefore, in summary, the trademark dilution not only is one kind of infringement trademark rights behavior, but also an unfair competition behavior, simultaneously is also encroached upon the consumers and the public interests. Generally speaking, the trademark dilution mainly manifests in two ways: Dilution and Contamination. The contamination is more hazardous than dilution and has a much serious consequence as well. The trademark dilution exists in diversified ways in practice. For instance, a famous trademark is used to the non-competing commodity or service and so on. The trademark dilution behavior is a great harm to the trademark owners, the same competitors, the consumers and the public.Next, in view of the current Trademark Anti-dilution Theory research as well as the existed issues, the paper discusses the overseas trademark anti-dilution fundamental research actuality as well as the problems in the Trademark Anti-dilution Theory. The traditional trademark protection aims at the distinguishing characteristics. Its theory foundation is the Confusion Theory. The Anti-dilution Theory is evolved from the Confusion Theory. The Trademark Anti-dilution Theory originated from US and was well adopted by some other countries quickly. Meanwhile, some international conventions made the corresponding stipulations. The trademark dilution phenomenon existed long time ago, but actually it did not draw an adequate attention. It mainly results from the limitation of the traditional theory. According to the traditional theory, the protection is limited within the scope of registered commodity or service. While the trademark dilution is to apply the same or similar trademark into a different, non-similar commodity or service. This is obviously beyond the traditional trademark rights protection range. The prevailing trademark rights theory is helpless regarding this. Moreover, the Trademark Anti-dilution Theory itself has a great dispute. China should hold a prudential attitude in the introduction and practice of this disputable theory. Furthermore, the protection scope should not be limited to the famous trademark. So far, there is no defined stipulations on the anti-dilution oftrademark in China's laws or regulations. With reference to the foreign theory, the scholars in China already have obtained some improvement on the research of this topic. However, generally speaking, the research is insufficient. There are still more problems to be investigated and discussed further. Currently, in the judicial practice, a lot of cases on trademark dilution have appeared. Both the practice and the theory are summoning the trademark anti-dilution legislation. China must speed up the process of the introduction of overseas experience, so as to provide a broader and more powerful protection to the well-known trademarks and famous trademarks. Meanwhile, the introduction of the Trademark Anti-dilution Theory will certainly make the trademark legislation more perfect.Finally, after China entered WTO, the research on trademark anti-dilution and its legislation has vital significance, it will also promote our socialist market economy. Considering Chinese present domestic situation, the paper figures out to bring the trademark anti-dilution subject into "the Trademark Law". The paper provides four suggestions on the setting up of trademark anti-dilution system. Namely, Expanding the protection scope of trademark anti-dilution and stipulating relevant concepts of the trademark dilution objects; The protection scope of trademark anti-dilution should be confined to the non-competing commodity and service; The trademark anti-dilution provision should include possible relief measures once the trademark may be desalinated into a general name; Adding the stipulations on the reasonable utilization of the trademarks. At the same time, the dilution behavior is not only violating the trademark rights held by the famous trademark owners, but also destroying the normal competition order and disturbing the fair competition order. Therefore the dilution behavior is also an exhibition of unfair competition and must be applicable under "the Law against Unfair Competition". The proposal is to apply both "the Law against Unfair Competition" and "the Trademark Law" simultaneously. This can provide an overlapping protection and make up the insuffiency of either one of the two laws.In brief, the theory research and legislation on the Trademark Anti-dilution Theory will inevitably impact China's corresponding law and...