Commenting On The Dilution Of Trademark And The Consummation Of The Trademark Law Of People's Republic Of China

Dilution of trademark is to use a well-known trademark in the commodities that is not in the same category of the well-known trademark user's commodities, not having the obligee's consent. The conduce leans on the great prestige of the well-known trademark, brings profit to the tortfeasor, and makes damage to the obligee. Dilution of trademark theory was firstly replied by German judicial practice, and then it was absorbed by many countries, including China. Nowadays, special protection for the well-known trademark on law has become the tendency of world legalization, but dilution theory is a new title for study in Chinese law circles. Though some scholars have pay attention to the conception, it still not enough. So study of dilution theory is urgent and important.Definition of trademark infringes the obligee and consumer's right and interest, and destroys fair competition or market order, so law should punish it. Traditional trademark law does not have dilution theory, and does not think dilution of trademark is tort. However, high notable quality of well-known trademark and cite function's rise create dilution theory. Dilution of trademark is a special tort, which is unlike counterfeit trademark, the tortfeasor uses the trademark in the commodities that is not in the same category of the obligee's commodities. The counterfeit trademark is to use trademark in the commodities that is in the same category of the obligee's commodities. In appearance, the tortfeasor and the obligee are not competitor, the tortfeasor does not make damage to the obligee. In actual, dilution leans on the prestige that the well-known trademark undertake, not only harm the well-known trademark, but also form unfair competition. Dilution theory is to prevent this conduct, which is based on trademark's broaden-protection association theory. Well-known trademark has great prestige as it is used in the market, in which the obligee pays a large amount of money and manpower. At last, consumer will connect the two trademarks when he looks a likely trademark in any commodities, he may think the two merchant have association. Dilution theory looks on cite function of trademark and prestige as an independent and intangible property, of trademark right, not only protects the obligee's private interest, but also protects the whole society interest. Definition of trademark has four conditions: (1) target of dilution is the well-known trademark; (2) somebody conducts the dilution; (3) dilution may or has made damage to the obligee; (4) the tortfeasor is in order to "free riding". There are three categories of dilution: weaken, uglify, degeneration. Dilution appears all kinds of form in actual livings, including trademark tort as well as business name tort.There are three new ideas in the thesis: (1) to confirm the well-known trademark's "second meaning". The "second meaning" is not originally used in trademark register, but is used in well-known trademark protection. Because the well-known trademark has high and notable quality, it also has the "second meaning"; (2) to explain dilution on the basis of association theory. Association theory points to counterfeit trademark, but is used in dilution of trademark, for the key of dilution is consumer's association with two trademarks of commodities. Dilution is a branch of association theory; (3) to absorb in cite function and prestige of well-known trademark, and enrich trademark right. Because great prestige can also bring profit to the obligee, and it needs the obligee's labor. It is a new property of the obligee.