On The Recognition And Protection Of Well-known Marks

Chapter1 clarify the conception and feature of well-known trademark. Only whenthe conception of well-known trademark is fully understood, we have the theory basisof the determination and protection of well-known trademark for further research,especially for those countries like China that has a positive law system. Based on theinternational convention and definition given by some foreign countries and definitionsgiven by different departments in different period, this paper's author considers thedefinition of well-known trademark is "the trademark is that has highly publicacceptance in China".The Paris Convention provide the protection of well-known trademark firstly, butdoes not explain what is well-known trademark;the Trips Agreement and the JointRecommendation of well-known trademark (shortened form the JointRecommendation) does not clearly demonstrate the meaning of well-known trademark,but provide some standards for the determination of well-known trademark. The Tripsand Joint Recommendation begin to concern the conception of well-known trademark.US is in the similar situation, either in trademark law or in anti-trust law there also hasno the relative content. The recognition of well-known trademark can be presented incourt cases. The conception does not represented in trademark law of Japan, Franceand UK as well.In China, we can find out the conception of well-known trademark in InterimRegulations for the Recognition and Administration of Well-Known Trademarks(Issued by the State Administration of Industry and Commerce on August 14, 1996).Well-known trademark, as referred to in this regulation, is defined as a registeredtrademark that enjoys a relatively high reputation in the marketplace and is veryfamiliar to the relevant public. Trademark Law issued later does not mention theconception. In 2003 Regulations for the Recognition and Protection of Well-KnownTrademarks also mention the same meaning.Although the definition does not present in most of international conventions andother countries' law, we can find out some common standards in practice and concludethe definition. That is the main content in chapter 1.In chapter 2, with the viewpoint of well-known trademark protection history, thispaper's author considers that the main purpose of determination is just to protect.Protection is the purpose and determination is the method.Firstly, we must clarify a mistaken thinking, that is, if a trademark has relativelyhigh reputation, high marketing shares and ranking first several position, the trademarkought to be recognized as well-known trademark. In order to clarify the view, from theprotection history of well-known trademark, then introduce the existing situation insome specific countries. From history development of recognition, author made moreexplanations that well-known trademark is a method that all trademarks can obtain,only when further protecting needs, well-known trademark issue to it.Secondly, author gives more details of several well-known trademark recognitionand protection theories and the view of it, insisting confusion theory or dilution theory,or a one between them?There are two common basic theories regarding to the well-known trademarkprotection, confusion theory or dilution theory. Dilution is the leading theory in thefield and the confusion theory is a traditional one that consider that the main purposeof well-known trademark recognition is to prevent the confusion;the dilution theory isthe popular theory now in the world, well-known trademark protection does notprevent confusion, but the dilution situations like weakness of the notability ofwell-known trademark, or the damage to the goodwill of well-known trademark. Bycontrasting and analysis, considering the situation of China and the difference betweenweakness of notability and damaging goodwill, this paper's author does not agree withthose two theories fully and try to balance them. That is to enact the not entire dilutiontheory in practice. In detail, breaking the limitation of the dilution that claims theprotection of well-known trademark should be delivered to only the situation thatmight dilute well-known trademark, but emphasize that only as the dilution do occurs,the protection of well-known trademark can be taken.In chapter 3 introduce the situation of protection of well-known trademark inoverseas and domestic, including the protection to registered trademark andunregistered trademark.The activities of the recognitions of well-known trademark in oversea are mostlyacted in courts. Some specific administration offices have the power to do this, likeEurope Japan etc, but mostly act in courts even in those countries and this is adistinctive feature of foreign countries. By the way of listing the recognition andprotection of well-known trademark in oversea country and contrasting the protectionof registered trademark and unregistered trademark, we can make a conclusion of theprotection of well-known trademark----the most important thing in protectingwell-known trademark. is the benefits of the trademark owner or protecting thebenefits of consumers or the fair competition order of market?Chapter 4. What is the new problem in the protection of well-known trademark?There are two questions needed to be answered: the conflict between well-knowntrademark and domain name, and the conflict between well-known trademark andenterprise name.The conflict takes a new feature to the recognition of well-known trademark, anddraws much attention from many experts. Is it possible that the scope of well-knowntrademark enlarges to internet? How far is the scope of well-known trademark? Thereis no exactly answer to the first question, and there are much debate to the secondquestion, much of them focus on what is the damage to well-known trademark? Is itallowed that no commence well-known trademark is used as domain name? What isthe principle of permission or not permission or partial? The conflict betweenwell-known trademark and enterprise name has been discussed for long time, but somenew problems still met in practice.