The Recognition Of Well-known Trademark

Well-known trademark can ascend to Paris Convention for the Protection of Industrial Property. Well-known trademark in this convention means the trademark with high reputation in mass. Well-known trademark, because of "well-known", may bring high profits and, on the other hand, put it in the situation frequently to be infringed. Therefore, it is very necessary to perform special recognition and protection system for well-known trademark. Logically, it is the precondition to recognize a trademark well-known trademark when applying special protection to it. Then, we come to a question that which institute follows what principle and standard in the recognition of well-known trademark. That is also the problem that shall be solved first in the construction of the protection system of well-known trademark. Frankly speaking, well-known trademark could not be effectively protected without solving the problem in well-known trademark recognition. Hence, in this thesis, the current status of well-known trademark recognition system in our country and the relevant problems and origins was analyzed on the basis of analyzing relative treaties. Some suggestions to system perfection are provided, after drawing certain experiences from other countries, focusing on those problems in the recognition system of well-known trademark in our country. This thesis consists of four chapters. In the first chapter, some treaties are analyzed and the relevant recognition systems of well-known trademark are evaluated. Today, the treaties that have direct connection with well-known trademark includes Paris Convention for the Protection of Industrial Property (1967), TRIPs and. Joint Recommendation Concerning Provisions on the Protection of Well-known Marks proved by the Paris Union and WIPO in Sept. of 1999. Although these three treaties provide some directive principles and suggestions on how to recognize well-known trademark and even list, in an endless way, some factors that shall be considered in the recognition of well-known trademark, however, the recognition standard is not clarified but left for the members. That is to say, those countries, respectively, have great discretionary power in the recognition of well-known trademark. The current status, problems and relevant origins of the recognition of well-known trademark in our country are analyzed in the second chapter. This chapter consists of two sections. In the first section, the current status of the recognition of well-known trademark in our country is introduced. As to the principles of recognition, the directive principles of "positive recognition and case recognition"are established. With regard to the standard of recognition, on the basis of article 2 and article 3 of newly issued Recognition and Protection Regulations, a well-known trademark shall match the requirement of the abstractive theoretical description and the listed examples. Regarding to the recognition institute, a dualistic recognition system is established in our country, i.e. both the relevant administrative sector and the courts have the authority to recognize well-known trademark. Generally, our country's well-known trademark recognition system can fit the objective conditions and can adapt to those relevant treaties and international practices. In the second section, depending upon the analysis of the current status of well-known trademarks recognition in country, the author points out some problems in it. The first one is the extension of the force and influence of recognition, which is manifested by the abuse of the advertisement of well-known trademark and the reversion of the burden of proof in the process of re-recognition. The second problem is the ultra-high standard of well-known trademark recognition, which is presented by the requirement of "having high reputation"described in the statutory concept. And the last one is the lack of arbitration institute in well-known trademark recognition institutes. The lack of recognition authority in arbitration institute will influence the efficiency of arbitration. The third chapter is about the argument on the recognition of well-known trademark of America, Japan and Europe and the revelation. First, article1125 (c).1 of Federal Trademark Law contains eight factors in the recognition of well-known trademark. "Having high reputation"is not emphasized in this regulation. Secondly, Japan is the first country in Asia to accept Paris Convention for the Protection of Industrial Property and that happened 106 years ago. However, in Japan, like all other countries, thecontents of article 6, 2,which is relating to the protection of well-known trademark, are not reflected in its domestic regulations. At last, with regard to the recognition system of well-known trademark, in The Trademark Rules of EU, as the Paris Convention for the Protection of Industrial Property, there are no regulations on the circle of persons but the geographical range to evaluate the "reputation"of well-known trademark. In the fourth chapter, the author visualizes the perfection of recognition system focusing on the problems pointed out in Chapter Two. This chapter is composed by three sections. The first section is about the limitation of the force of well-known trademark recognition. On the problem of the abuse of the advertisement of well-known trademark, the author suggests forbidding those advertisement using well-known trademark as the propagandistic measures in order to carry out the principle of "case recognition and limiting the extension of the force and influence of once recognition". As to the "reversion of the burden of proof in the process of re-recognition"problem, the author suggests clarifying the application of law so as to correct the unreasonable system. The second section is about the propriety of the standard of well-known trademark recognitions. Focusing on "the ultra-high standard of well-known trademark recognition", the author suggests amending the newly issued Recognition and Protection Regulations to enlarge the extension of well-known trademark recognition. In the third section, perfection of the system of well-known trademark recognition institute is argued. Concerning the problem of "lack of arbitration institute in well-known trademark recognition institutes"and consulting the regulations of the recognition-related administrative sector, judicial institute and quasi-judicial institute in Joint Recommendation Concerning Provisions on the Protection of Well-known Marks, the author suggests delegating the recognition authority of well-known trademark to arbitration institute to keep its high efficiency in the procedure of well-known trademark dispute solution. The coming of knowledge era makes people recognize, more than ever, the economic value of well-known trademarks, which is much intensified in the construction of the protection system of well-known trademark. With the...