The Study On The Administrative Protection Of The Well-known Trademarks In China

The well-known trademarks are able to benefit the enterprises with hugeeconomic profits, and they also possess the commercial values themselves. Therefore,they become the objects of tort causing not only serious loss of the owner of thewell-known trademark in both reputation and economic interest, but also the damagesto the interests of the consumers. Thus the well-known trademarks should beprotected in a more comprehensive way. The protection to the well-known trademarksby law is of multilevel and multiaspect, including administrative protection andjudicial protection. China has paid more attention to the coordination among theeconomic development, the well-known trademarks, and the administrative protection,established an administrative protection system for the well-known trademarks inaccordance with the situation of state and the self-development, and actively tooksteps to conduct a systematic and effective reformation in order to perform the dueleffectiveness of the administrative protection system for the well-known trademarks.Through the application to the theory and to the solid evidence, this thesis studiesand discusses about the administrative protection of well-known trademarks, andproposes some suggestions to perfect the system of administrative protection forwell-known trademarks. It includes three parts.The first chapter has a general view on the protection of well-known trademarks.Firstly, it identifies the definition of the well-known trademark, which is defined asthe trademark with a better reputation and prestige than other trademarks, favored andapprobated by the public, validated in terms of the legal proceedings by the legalinstitution. Based on this, it introduces the legal features, the identification modes, andso on. Through presenting statistical data, this thesis stresses the importance of theprotection of well-known trademarks in the current economic development so as toemphasize the significant implication of the protection of well-known trademarks.Secondly, this thesis has a systematic analysis on the administrative protection systemof the well-known trademarks, in which it begins with the theoretical and practicalbackground, and points out the necessity of the administrative protection ofwell-known trademarks. On one hand, the administrative protection was advantageousfor its own solid professional foundation, high efficiency, and low direct cost, and onthe other hand, the tendency of public rights, the international competition as well asthe global communication claim to improve the administrative protection ofwell-known trademarks. The related regulations concerning to the administrativeprotection of intellectual right in the Constitution of China and the Trips Agreementfunction as the institutional basis for the administrative protection of the well-knowntrademarks. A comprehensive understanding of the regulations and putting them intopractice so as to implement the commitments, which were promised in China's entryinto WTO, will be directly linked to China's global competition.The second chapter discusses about the administrative protection system of thewell-known trademarks in China. At beginning, the structure of administrativeprotection system of the well-known trademarks in China is introduced. On theaspects of the subject and authority of our nation's administrative protection of thewell-known trademarks, the administrative institutions and customs office, accordingto the related regulations is in laws and statues, have a certain authority to execute thelaws administratively. Within their limits of functions and powers, these institutionsexecute the administrative protection on the well-known trademarks with a purpose toprotect the interests of the owners of the well-known trademarks home and abroadand the interests of the customers, and to maintain an orderly social and economicenvironment as well as the international image and competitiveness of China. In thefollowing part, the duties and authorities of the administration of law for theprotection of well-known trademarks in China are introduced in detail. Bearing thefeatures of being broad in use and high efficiency, the administration of law canprotect the well-known trademarks in a more overall and effective way compared withthe judicial protection. In practice, it executes a comprehensive protection on thewell-known trademarks though exercising the administrative confirmation right aswell as the administrative investigation and prosecution right and perfecting theadministration of law in the customs office at the same time. This protection caneffectively protect the lawful right and interests of the owners of the well-knowntrademarks and those of the customers, maintain the social and economic order, andproduce a better social environment for the fair competition. Moreover, theadministrative relief should be added in order to perfect the administrative protectionof the well-known trademarks. The next part analyzed the current administrativeprotection system of the well-known trademarks in China. After China's accession tothe WTO, the legal system of the well-known trademarks in China improved further;the administration of law was implemented in a more normative manner;theprotection system of the customs office improved a lot, and the achievements made byadministrative protection are quite outstanding. However, some serious problemsattract our attention, such as the defects on the legislation about how to make use ofthe well-known trademarks in a reasonable manner, the conflicts between well-knowntrademarks and the domain names, the conflicts between well-known trademarks andthe trade names. Further more, the administrative protection subjects are not definitelyidentified, and the unilateral nature of the legal responsibility and the regionalism ofprotection exist. All of these problems existing in the administrative protection of thewell-known trademarks have a direct impact on the development of this protectionsystem.To solve the problems discussed in the Chapter Two, in the third chapter, somesuggestions for improving administrative protection of the well-known trademarks inChina are proposed from seven aspects. Firstly, the guidance principles for improvingthe administrative protection system of the well-known trademarks should be set up,and the guidance would keep the administrative protection going in the rightdirection.Secondly, a coordinated system of administration of law for the administrativeprotection of well-known trademarks should be established. In the currentadministrative protection system of the well-known trademarks in China, the laws andregulations concerning the administrations are unsound, and the limits of duties andauthorities of the administrative subjects are not defined explicitly and clearly, both ofwhich demand the administrative institutions to have a coordination and cooperationto carry out the integrated effect of the all-inclusive administration of law.Thirdly, to remove barrier caused by the unilateral nature of the regulation of thelegal responsibility of the well-known trademarks at present, a systematic andcomplete legal responsibility system of the well-known trademarks should beestablished. The administrative accountability system in the government agencyshould be built and the consciousness that the administrations of the well-knowntrademarks should take "responsibility" to the administrative protection should bedeveloped.Fourthly, the law and regulation system of the administrative protection of thewell-known trademarks is suggested to be improved, and the Trips Agreement and thetrademark laws of different nations could be used for references, so as to connect theprotection of well-known trademarks in China to that in other nations.Fifthly, the steps of the establishment of the related droit administration systemshould be accelerated. The importance and value of the droit administration systemare realized and confirmed in modern social life. The supplement of some relatedregulations like administrative guidance, and administrative participation isindispensable for the overall protection of the well-known trademarks.Sixthly, facing the economic globalization and the nationalization, it is not aneasy job for us to achieve a perfect protection of the well-known trademarks.Therefore, the coordination and cooperation among the related institutions home andabroad are suggested to be strengthened in order to improve the protection ofwell-known trademarks in China.Seventhly, the relationship between the administrative protection and the judicialprotection of the well-known trademarks should be coordinated, and the transferringof the trademark cases and the transition between the administrative penalty and thecriminal sanction should be well operated so as to improve the protection ofwell-known trademarks in China with join force.The final part is the conclusion of this thesis, in which the expectation that theadministrative protection of the well-known trademarks may help to stimulate anincreasing number of world-class well-known trademarks to emerge in China isexpressed.