International Protection Of Unregistered Well-known Trademarks And China's Choice

There is a research on the international protection of unregistered well-known trademarks and China's choice. The full paper is composed of three chapters: the first chapter briefly introduces the international protection standards of unregistered well-known trademarks; the second chapter researches the legislation and judicial practice of unregistered well-known trademarks in the U.S.A.; the last chapter is about China's choice in the protective system of unregistered well-known trademarks.Chapter One summarizes the generation of the international protection standards of unregistered well-known trademarks. Well-known trademarks are not just the source of the goods, but also carry the reputation. It is unfair that if only it is an unregistered trademark, it should be refused to be outside the scope of protection. Based on the above considerations, this question how to protect unregistered well-known trademarks was suggested by France in 1911 on Washington General meeting, and eventually be written into the Paris Convention, initially the international protection standards of unregistered well-known trademarks were generated. Paris Convention is a renowned convention about the international protection of unregistered well-known trademarks, so it has some deficiencies. For this reason, the determination standards of unregistered well-known trademarks were put forward in TRIPS.At one time,the lowest international protection standards of unregistered well-known trademarks were established. In Joint Recommendation Concerning Provisions on the Protection of Well-known Marks, the protection of unregistered well-known trademarks is regulated in detail, but the Recommendation has no legal validity, so we make it as our reference.Chapter Two researches the legislation and judicial practice of unregistered well-known trademarks in the U.S.A. There were no explicit provisions to protect unregistered well-known trademarks in traditional laws in the U.S.A. And in the early judicial practice, the courts also did not give legal protection to unregistered well-known trademarks. Federal Trademark Dilution Act which was taken effect in 1996 provides sufficient protection of unregistered well-known trademarks. In this act,it provides eight factors to determine unregistered well-known trademarks. In the U.S.A., unregistered well-known trademarks are determined by courts. It is found to be effective in solving new problems arising from the protection of trademarks. In judicial practice, the case of"Camden Yards"points out that trademarks only through advertising could be protected in the U.S.A. It effectively supplements the corresponding provisions.On the protection of unregistered well-known trademarks, The United States went through a process, from traditional"likelihood of confusion"theory to"dilution"theory. Prior to 1996 the cornerstone of trademark infringement is the likelihood of confusion. The scope of protection from trademark infringement is limited to similar goods from competing, or foreseeable competing companies.However,in judicial practice,the courts often give extensive interpretations about"likelihood of confusion".The"dilution"theory was articulated by a legal scholar. In his 1925 account, Schechter advocated an expanded consumer confusion test because of the changing function of trademarks in commercial transactions. After two years,in contrast to his earlier proposal, Schechter advocated the completed abandonment of the consumer confusion test on account of its continuing failures. This proposal marks proved too radical to be adopted in full. From the late 1940s,"dilution"theory was adopted in the legislation. It is the cornerstone of FTDA.In this act,the word"cause dilution"leads to distinctive interpretations from different courts.TDRA establishes"likelihood of dilution standard"in 2006, and gives a new conception about"dilution".Chapter three is about China's choice in the protective system of unregistered well-known trademarks. Because the United States is one of the developed countries, as well as the protection of unregistered well-known trademarks is perfect.Therefore, the author carries out a comparative analysis of the protection of unregistered well-known trademarks between China and the U.S.A., in order to consider China's choice in the protective system. On the question of the protective scope of unregistered well-known trademarks , China advocates the"domestic standard", and the United States stands for the"world standard". The reason is that the multinational corporations belonging to the U.S.A. have lots of well-known trademarks. The United States maintains the interests of the multinationals by expanding the scope of the protection.From this allegation, we can see that this expansion is beneficial to the United States. It is unfair for China to adopt the"world standard", because China is a developing country. Moreover,the legislation of China is in line with the provisions of Paris Convention and TRIPS, meanwhile, effectively protect its own interests, so China should continue to adhere to the"domestic standard". Currently, unregistered well-known trademarks are determined by the subject of administration in China in contrast to the judicial office in the U.S.A. The business may have some losses during the period when the subject of administration spends on determining well-known trademarks. However, the courts can redeem this deficiency. Therefore, the author proposes that it should be added to the provision of the determination by the judicial office on unregistered well-known trademarks in law.In the U.S.A., anti-dilution protection of unregistered well-known trademarks is accepted, but in China it is only suitable to registered well-known trademarks. This is in line with China's conditions,because the most of unregistered well-known trademarks in China are the foreign trademarks.Just think,if a trademark has been known by lots of people,and not be registered,then they will be owned by others easily,so there is little well-known trademarks which are not registered in China. In addition, if a country gives too much protection to unregistered well-known trademarks, it will create monopoly in the market. Moreover, the"dilution"theory has been in existence for nearly a century, it is still quite controversial.In a certain extent,TDRA improves the relevant regulation,but it is still a process in which the"dilution"theory becomes ripe.At the moment,the"dilution"theory is not adopted in the international conventions.In short,the legislation of the protection of unregistered well-known trademarks is in keeping with the international protection standards. Therefore,China should not adopt anti-dilution protection of unregistered well-known trademarks.