The Study On The Legal Regulations To The Fraud Litigation In Judicial Determination Of Well-known Trademarks

The protection of well-known trademarks is on the premise of determination of well-known trademarks. Well-known trademarks in China are determined both in administrative way and in judicial way, however, the convenient and less cost of judicial determination with final judicial authorities is much more stable than the administrative determination. Therefore, the right owners of common trademarks take advantage of the flaws and leaks in the systems of well-known trademarks determination, They tend to start fraud litigations on the purpose of determination of the well-known trademarks by way of the fabricated trademarks infringements so that they could obtain extra benefits. The precautionary and regulating solutions are of considerable significance in the regulations to fraud litigations and the integrity of determination and supervision based on the researches on fraud litigations. The public misinterpretations to the legislative aims of well-known trademarks determination institutions induce the incentives for fraud litigations, and the deficiencies in the institutions of determination of well-known trademarks also offer the litigants rent-seeking space. Fraud litigations combine unfair competition with special torts. The litigations which erode the principals in good faith and damage the common interests cause the dissimilation of the well-known trademarks systems. The procedure solutions dominated the regulating modules to the litigations against the due process of law. The procedure judicial decisions are usually as follows: the dismissal of legal actions , the invalidation of legal actions , and pecuniary penalty. In the entity , the mechanism of compensate for the fraud litigations is usually established .A serial of effective legislative and administrative integrated solutions establish the practical base, however , the law barriers in regulating fraud litigations still exist ,such as , the legal obstacles of the applications in the cognizance and sanction of fraud litigations; the lack of the protective procedures to the damaged party; the bottleneck in consumer actions due to the deficiency in Chinese group litigation. The author has finally reached the following conclusions: The proceedings in determination of well-known trademarks and the systems related to propaganda and advertisements of well-known trademarks must be regulated in legislative instruments. The precautionary and the penetrating mechanism should urgently be established. In the procedure, the litigation of discharging the judgment for the damaged party in foreign countries should be used for reference, the American consumer class action can also be limitedly introduced. The two proceedings endow the damaged party having interests in the matter with the right and qualification of starting the retrial, which help the damaged party get the relief instrument fighting with the valid judicial decisions. In the entity, the mechanism of tort liability and compensate for the fraud litigations should be established, including the tort liability constitutes and the detailed settling procedure. The key to regulate fraud litigations is the design and enforcement of the institutions. The problems, such as, the perfect proceedings of the well-known determination in the Chinese trademark law, the applications of the right of litigation of discharging the judgment for the damaged party in the Chinese procedure for supervision upon adjudication, the reasonable application of American consumer class action in the Chinese commissarial litigation systems, are necessarily further to be analyzed and discussed in the future.