Study Of The Identification And Protection Of Well-known Trademark

Among the most of trademarks,well-known trademark has been paid great attention to by its owners,operators and consumers as it represents high-quality of goods or services and shows cultural connotations in a certain degree.It is the games of interests among these market subjects that promote the system evolution of the identification and protection of well-known trademark,which,in turn,influence the interest relationships of the subjects aforesaid.Based on the perspective of balance of interests,this thesis arranges the system evolution of the identification and protection of well-known trademark on the macro level and then analyses profoundly interest structure of well-known trademark on the micro level, and with combination of both,shows the alternative cycling process of interests balance and imbalance of subjects related to well-known trademark under the influence of the macro system.And furthermore,this thesis intercepts the fragment of current identification and protection of well-known trademark in China on this chain of system,discusses about the ways of correcting alienation of well-known trademark identification and restricting appropriately extensive protection for well-known trademark in today's China to attempt to seek a balance among the related interest subjects of well-known trademark,and between the protection of private rights and that of public interests.In particular,this thesis is divided into three parts:Part one is the system evolution of the identification and protection of well-known trademark.Primarily,the thesis arranges the system evolution of the identification and protection of well-known trademark in International Conventions,and mainly analyses related provisions for the identification and protection of well-known trademark in Paris Convention,TRIPS Agreement and the Joint Proposal on Provision for Protection of Well-known Trademark.Moreover,the thesis arranges the system evolution of the identification and protection of well-known trademark in China,which is divided into three stages,namely:1985 to 1996,1996 to 2001,2001 to now.The said analysis purports to reveal that at the form level,the system of the identification and protection of well-known trademark is more and more regular while at the content level,the criterion of the identification of well-known trademark has been gradually reducing,power of protection gradually increasing,allocation of interests among subjects related to well-known trademark is slanting to owner of well-known trademark whose interest protection has converted low peotection to high one.Part two is the analysis on interest structure of well-known trademark.To start with,the thesis expounds fields of private rights and public involved well-known trademark through the labour doctrine of property rights and externality theory.From the perspective of the object,the field of private rights of well-known trademark lies in "secondary meaning" of symbol,that of public "original meaning";From the perspective of the subject,the interests of owner of well-known trademark belongs to private field,while that of other operators and consumers public field.What's more,the thesis analyses interest conflict and balance of subjects related to well-known trademark,which is embodied as follows:where through "free-ride,operator infringes upon goodwill,well-known trademark as its carrier,owned by holder of well-known trademark,unfair competition exists;where owner of well-known trademark encroaches on imitation freedom of other operators by waste of power,trademark monopoly exists.Last but not least,the thesis throws light on mutual relationship between the games of interest subjects and the system evolution of well-known trademark:interest games of subjects related to well-known trademark gives impetus to the system evolution of well-known trademark,while the system evolution of well-known trademark may also influence the interest structure of well-known trademark.Part three is the principal problem and its resolution concerning the identification and protection of well-known trademark in China.Low protection for the interests of owner of well-known trademark has converted into high one,which corrected interest imbalance resulted from unfair competition behaviour of other operators,but over-expansion of private right of owner of well-known trademark may also arise risk of eroding public field.In today's China,it is the most apparent that alienation of the identification of well-known trademark and waste of power of its owner give rise to new interest imbalance.As to alienation of the identification of well-known trademark,it is chiefly embodied in such aspects as the number of identification of well-known trademark skyrocketing,harnessing well-known trademark to make commercial advertisement and using "fictitious litigation" to swindle identification of well-known trademark,and so forth.The reasons for alienation are endless desire for interests,misunderstanding of the nature of well-known trademark and early system inertia of China.Effective measures should be taken to deter the "fabricating"and "ruining the effect by adding something superfluous" in judicial finding,to avoid local protectionism in judicial finding and to forbid enterprises from highlighting unilaterally the use of words " well-known trademark of China" in advertising and propagating.We must place given restrictions on waste of power of owner of well-known trademark,i.g.in order to prevent being over-absolute of cross-type protection,we need to further clear the conditions of granting cross-type protection;to understand properly the acts of self-diluting of owner of well-known trademark;to prevent misuse of power of owner of well-known trademark in light of principle of reasonable use,and so forth.