Act Of Trademark Dilution And Regulations

Today, competition in economy field has already not been restricted in a country, competition aggravates in the whole world, but the competition in economy field embodies more in competition of commodities and service and in marks. Competition leads to all kinds of infringing acts. As trademark law becomes more perfect, new kinds of infringements come up, which need to be regulated, and the theory of trademark dilution needs more research.The act of trademark dilution means act without permission of the proprietor of trademark right, using the identical or similar trademark in different and dissimilar commodity, then reducing and weakening its distinctiveness.Since the theory of trademark dilution was brought forward, it has been applied in judicial practice broadly, and been adopt by many countries besides America. Some subsequent international treaties such as'Paris Convention for the Protection of Industrial Property, Agreement On Trade-related Aspects of Intellectual Property Right'which passed in 1994 also adopt this theory. Continental law system countries think much of the research and legislation of the theory of trademark dilution. Intellectual property rights law code of France in 1991 and trademark law of Germany in1994 have related regulations.In the initial phase that trademark appears, its main function is distinguishing commodity and service from been confused. The information which transferred is the resource of the commodity and service. The purpose of the traditional trademark law is to protect this kind of distinctive function. As economy develops and life changes, function of trademark changes a lot. Trademark has independent status .It is not sign of commodity and service any more, mark itself has independent economic value. Compared with traditional theory of trademark protecting, theory of trademark dilution provides more integrate and more comprehensive theoretical base. It makes up the shortage of traditional theory; provide more effective and more comprehensive protection.From the point of the view of famous trademark holder, firstly, the quality of dilution is a kind of infringement; from the point of the view of competitor, it is also a kind of act of unfair competition; from the point of the view of consumer, it's a kind of act which damage consumers and public interests.The direct object that trademark dilution infringes is trademark, indirect object is commercial goodwill. Distinction, which means specificity of trademark itself, namely characteristic of one trademark distinguish from another. Distinction is the base of a trademark. Identity means character of a trademark that related to certain kind of commodity. The direct damage of trademark dilution is pointing at distinction and identity of the famous trademark. By doing this, it damages commercial goodwill finally.Act of dilution consists of three kind of manifestation: diluting, attainting, and degenerating. Diluting is the most familiar form, which means such act that person who has no rights uses it on different and dissimilar commodities, destroys distinction and identity of the famous trademark, and dilutes relation between trademark and commodity, harms business value of the famous trademark. Attainting means such act that users having no rights apply the same or similar trademark on commodity, which damages commercial goodwill of famous trademark. Degenerating means such act that using trademark incorrectly; famous trademarks become a universal name, losing identity completely and function of distinguishing. Degenerating is the most severe one.I consider it needs several terms to recognize act of trademark dilution. Firstly, the trademarks must be famous, but not limited to registered trademark. Secondly, there exist acts of registering or using the same or similar trademark on their different or dissimilar commodity or service. Thirdly, damages the act brings leads to famous trademark diluting, makes consumers confused and function of famous trademark diluting or lost. Finally, it needs not to consider the actor's subjective aspect.Protection of famous trademark began in 1985 when our country joined in the treaty of Paris Convention for the Protection of Industrial Property, there is no specific regulations on protection of famous trademark in our domestic law. In practice, trademark bureau of the national administration for industry and commerce has protected some foreign famous trademarks to avoid it being diluted in china according to the treaty of Paris Convention for the Protection of Industrial Property.The trademark law being revised in 2001 has more comprehensive regulations in protection of famous trademark, which brought a new page for famous trademark protection, but measures are limited to forbid registering and using, not listing act of trademark diluting in trademark law as a special kind of infringement. There is no corresponding regulations on definition, modes of conduct, constitutive requirements, legal obligation, etc.Contrasting to research on the theory of trademark dilution in other countries, using for reference their legislation, I think we should make great efforts in such aspects: firstly, it isn't the right time and occasion to legislate trademark law because research on trademark dilution is still weakness and not systemic. It is restricted to regulate trademark dilution in anti-unfair competition act. It is properly to adopt the legislation in trademark law. The two codes can cooperate and protect trademark right and interests of the proprietor together. Next, legislation on trademark dilution needs to be improved. It is necessary to define the act of trademark diluting and the protective range, make the manifestation more clear, improve cognizance of the famous trademark; revise trademark law, coordinate it with international treaty, and thus improve legal regulating of the act of trademark diluting. It is needed to extend the range of protection, cancel the limitations that only registered trademark can become famous trademark, regulate manifestations of civil liability concretely, only by taking such measures into effect can we regulate the act of trademark diluting and protect famous trademark better.