Study On Judicial Recognition Of Well-known Trademark In China

As an important part of intellectual property, well-known trademark is a valuable treasure for an enterprise even a country. Because that the well-known trademark contains great economic value, the international community puts more and more emphasis on its protection system. The recognition of well-known trademark is the prerequisite and basis of its protection and efficient protection needs correct recognition. It has two ways to recognize well-known trademark in China which are administrative recognition by the Trademark Office (CTMO) and judicial recognition by courts. The judicial way plays an important role in the protection work of well-known trademark because of its timeliness and convenience. At the same time, it causes lots of problems to be solved in practice. Consequently, on the basis of analyzing the overall situation of judicial recognition of well-known trademark in China, the author puts forward a suggestion about improving the judicial recognition system of well-known trademark of our country through analyzing the problem in the present.There are four parts in the paper:The first section is the summary of well-known trademark. After introducing the origin of well-known trademark and analyzing the definition from international treaties and by scholars, the author believes that the theory of well-known trademark is complex, because there is not a clear definition of well-known trademark in those international treaties or national legislation. Our country has defined the well-known trademark three times. The latest definition was made in a judicial interpretation by Supreme People's Court in 2009. Well-known trademark refers to a mark that is widely known to the relevant sectors of the public in China. Then, this article introduces the history of well-known trademark recognition system of our country. The protection of well-known trademark in China started relatively late. The way to recognize well-known trademark which was only in administrative recognize system at first became a double-track system that included the administrative way and the judicial way. After that, the author analyzes the necessity of establish the judicial recognition system of well-known trademark in China in five aspects, which include the essence of well-known trademark, the significance of well-known trademark recognition, the limitations of administrative way, the requirement of judicial practice, and the implementation obligations of international treaties. In the second section, the judicial recognition system of well-known trademark in China is analyzed in detail. The characteristics of the definition of well-known trademark are abstraction and generalizability. Only by applying the principles and criterions of judicial recognition in the process of litigation correctly and neatly can we succeed in protecting the well-known trademark. The judicial recognition system of well-known trademark in China has four principles, such as passive recognition, recognized for needing. These principles are indispensable in each recognition case, because they guide the recognition direction and regulate its behavior. Therefore, we must grasp each principle's essence and internal requirements accurately so that they can be applied correctly. Then, the author introduces the criterions of judicial recognition. The core of the criterions is the degree of known to the relevant sectors of the public. Through explaining"the relevant sectors of the public"and"the degree of known",we can comprehend the application of the core criterion in practice. At the same time, the choice of the criterions should depend on the specific circumstances in a case. Because there is no legal rule about the litigation process of judicial recognition in current laws and judicial interpretations, the author arranges these contents in this section. There are three stages in the litigation process and each stage has its own key points to which the courts or the litigants should pay attention.The third section studies on the problems and their causation in the judicial recognition system of well-known trademark in China. This section has three parts. The dissimilation of well-known trademark judicial recognition is the emphasis, because it is the focus in people's discussion in practice. The author clarifies what the dissimilation is in the first place, and then describes its phenomenon by analyzing several cases. It is discussed as the focuses of some corporations who make the mendacious litigations go after the judicial recognition of well-known trademark for profiteering. There are two causations of the dissimilation. The subjective one is mistaking a well-known trademark as an honorary title. The objective one is the attraction of economic interests and the discrepancy of the courts'criterions. The other two issues in this section are the conflict between the judicial way and the administrative way and the imperfectness of the mechanisms of supervision. The conflict without active coordination may lead to instability of the procedure of the well-known trademark recognition. As a static mode of supervision ex post facto, register system can't restrain the mendacious litigations effectively.The forth section is composed of some recommendations on improving the judicial recognition system of well-known trademark in China. The question how harmonizes the force conflict between the judicial way and the administrative way should be resolved in two ways. The one that can reduce the conflict is that we should constitute uniform and specific criterions when modifying the Trademark Law. The other is that we should confirm the finality of judicial review. In a case, the result of administrative recognition is not final, so the litigants can sue at law if they refuse obedience to the referee. The judicial recognition is final after the first and second instance. According to the laws in China, the protections shall only be applied on identical or similar goods when the well-known trademark is not registered in China while it can be applied on goods which are not identical or similar when the well-known trademark is registered in China. It is not proper that there is such a large difference between the two kinds of marks. In order to prevent the mendacious litigations, the courts must limit the recognized range of well-known trademark strictly and make the recognition only by the case needing. Moreover, the work that censors the litigants'status and the authenticity of the evidence of well-known trademark must be done in rigorous. Because the judges may be weak in the professional knowledge of intellectual property, the author suggests importing the Expert Jury System. It can raise the level of the professional knowledge and the recognized quality and be of benefit to protect well-known trademark.