Iimitations On The Special Protection For The Well-Known Marks In China

This paper reveales the problems of flooding and inappropriate expanding protection of well-known marks which commonly exist in protection practices of China after analysis of relevent research fruits, investigation reports as well as related administrative & judicial documents. Then, aiming at solving those problems hereabove, the paper starts from the angles of the theoretical basis for well-known marks protection, the distinctiveness theroy of trademark and balance of interests theroy to justify imposition of limitations on the special protection of well-known marks.This paper consists of five chapters as follow.Chapter I: Defining the concept of well-known marksThis section does not simply come to the definition of well-known marks, but first of all starts from the emergence and developing history of well-known marks system, and then through analysis of relevant laws and regulations come to the definition of well-known marks, as the basis of this paper.Chapter II: The status of special protection for well-known marks and the problems existFirst of all, a summary of the special protection provided by China for well-known marks is given out in this section as follows: A, well-known marks without registration can also be under protection of the trademark law; B, the protection scope of well-known trademark can be extended to non-similar goods or services; C, well-known marks can be against the domain name, business name and other commercial logoes other than trademarks. Whereafter put forward the problems exist in pratices of accreditation and protection of well-known marks: the accreditation of well-known marks is too loose, excessive expansion of protection of well-known marks. In particular, too loose accreditation of well-known marks is caused by the inconformity of the criterion of accreditation and well-known marks counterfeiting and local protectionism. Excessive expansion of the protection of well-known marks make the protection a forever one without end and give its holder the privilege to eliminate all other identical and similar commercial logoes.Chapter III: Justifications to the limitations on special protection for well-known marksA, from the perspective of theoretical basis of the well-known marks protection, China's adoption of confusion theroy as the theoretical basis is a limitation to the well-known marks protection. B, standing on the point of distinctiveness theroy of trademarks, the intensity of the distinctiveness determines the protection scope of the well-known marks. C, from the angle of balance of interests theroy, limitations on the well-known marks protection essentially help to realise the balance of interests among relevant subjects including the trademark right holders , competitors, consumers and other public involved in trademark law.Chapter IV: Measures research to the limitations on special protection of well-known marksAccreditation of well-known marks is the premise of the expanding protection, limitations on the accreditation shall be implemented from the aspects of subjects, criterion, mode, necessity of accreditation. Expanding protection to the right needs reasonable boundaries to limit the the well-known marks holder's right abuse. Limitations on the expanding protection shall start from those aspects: A, the scope of expanding protection rests on the intensity of the distinctness of trademarks; B, the scope of relevant public and the confusion of consumers shall be the limitations to the expanding protection; C, limitations on the domain name reverse hijacking.Chapter V: Conclusion This paper points out, good grasp of the essence of well-known marks system is the premise of limitations on the well-known marks special protection. Based on the confusion theroy , distinctiveness theroy & balance of interests theroy, clarify the boundaries of well-known marks protection reasonably, and unify the criterions of well-known marks accreditation and protection, to make the well-known marks systerm run on the right orbit.