Study On The Administrative Protection Of The Well-known Trademark

"Chi Ming Shang Biao"is called"well-known trademark"in English, which is a common law concept around the world coming firstly in < Paris Convention on the Protection of Industrial Property> made in March, 20th, 1882 in Paris, France. As a form of Intellectual Property Rights, Trademark Right is invisible treasure, which contains great value. Comparing with ordinary trademark, well-known trademark represents the quality, credibility of the commodity or service in a positive way and plays as advertisement besides showing the difference between other commodities or services. Because of the quality of the commodity or service and the reputation of the enterprise it represent, well-known trademark owns independent property value, and derives an economic function. That makes well-known trademark a spirit and pride of a country's industry and commerce field, and a valuable treasure of an enterprise and country. Therefore, it means a lot to protect the well-known trademarks. Consequently, on the base of analyzing the whole situation of international convention and law protection for well-known trademark in our country, the frame of the protection for well-known trademark is expatiated in details, and the advice about improving the protection for well-known trademark of our country is made through analyzing the problem in the present protection.There are four pars in the thesis:In the first section, the definition of well-known trademark in the thesis is made after analyzing the definition from international convection, laws in different countries and scholars. There is no clear definition in international convention, and the scholars'theories from different countries vary a lot. From this point, it can be concluded that the differentiation of well-known trademark is not easy, and the theories related are quite complicated. Every definition of well-known trademark can be scientific and reasonable in a particular aspect. In this thesis, well-known trademark is defined as the trademark whose reputation has reached a certain level. The level cannot be generalized and quantified in a simple way, and it should be regulated according to particular situation in different country. After a clear definition, the origin, development and present status of the protection for well-known trademark is introduced, and then the reason for a higher protection for well-known trademark than common trademark is analyzed from the points of the value of well-known trademark, the significance for the enterprise and country of the protection for well-known trademark.In the second section, the origin and concept of administration protection for well-known trademark is stated first. Administration protection means that, state administration department protects well-known trademark through legal procedure within the limits of its power, according to the law's regulation. In our country, the protection for well-known trademark has a character of"double ways", which means the coexistence of law protection and administration protection. The trademark can be protected in either way. Through the protection from the law and the administration, the advantages of the administration protection and the disadvantages of the law protection for well-known trademark are found, and then the necessity and particularity of administration protection is discussed. Subsequently, the main methods of administration protection are stated, including administration definition, administration investigation, administration penalty and administration intercession. The administration definition is focused. The department, method and regulation of administration definition are wholly analyzed, which is very important to differentiate the well-known trademarks. In the third section, the present situation and existing problem in the protection for well-known trademark of our country is analyzed. Firstly, the system frame of our country's administration protection for well-known trademark is generalized. Nowadays, our country's administration department takes two methods to protect well-known trademark, the protections from industry and commerce administration management department, and the protection from customhouse. From the two methods, the system frame of our country's administration protection for well-known trademark is systematically stated. On the base of that, the existing problems in administration protection are discussed from the layers of legislation and execution. On the legislation layer, the problems mainly exist in the fact that the legislation theory has not break through the limitation of traditional confusion about legislation, the restrict regulation of well-known trademark's rights is lacked, and the range of the law protection for well-known is too narrow. On the execution layer, the existing problems exist in the fact that the execution bodies are too multiple and in chaos, the setting of legal liability does not cover enough, and the administration protection lost justice in tending to protect the local rights.In the fourth section, the problems existing in the administration protection system for well-known trademark in our country introduced in the third section are analyzed, and advice about improving to protection system is raised, in order to play positive part in developing our country's administration protection for well-known trademark. The advice is given correspondingly to the problems stated in the third part, from the points of legislation and execution layers. On the legislation layer, the advice focuses on increasing the protection against desalt, increasing the limitation of the prescription of well-known trademark's rights, and enlarging the range of the protection. On the execution layer, the advice focuses on confirming the basic principles of administration protection for well-known trademark, making the adaptation machinery of the administration protection, fulfilling the responsibility setting of administration protection, and building related assistant administration system of the protection. Here by the related assistant system, it means the guide system, information system and encouragement system in administration, which are very valuable, creative, and receiving more and more attention in present administration laws.As the system reformation carries further and further, some of our country's enterprises have consistently met the problem of how to protect well-known trademarks while competing in the market. Our country has focused more in the protection the well-known trademark, which is favor to inspire the enterprise to create famous trademark and explore worldwide market, and also plays important part for domestic enterprises in seeking protection in abroad. The protection for well-known trademark is favor to beat the behavior of rights-invasion and maintain legal rights of enterprise, and enhance the competition ability of enterprise in market, and regulate the usage of trademark of enterprise in a standard way. All of these will hasten the enterprise to maintain the credibility, and regulate the usage of trademark of enterprise into a legal field. As the society focuses and explores the questions related with well-known trademark, our country's administration protection for well-known trademark will be gradually improved, and the protection system will be utilized in a benefic way during the execution.