The Comparative Study Of Trans-category Protection Of Well-known Trademark In China And Japan

Well-known trademark in the Chinese law is referred to thetrademark widely known to the relevant public."Trademark Law"provides for the well-known trademark standards, but too much principle,resulting in a significant difference of well-known trademarks in practice.Well-known trademark in the laws of Japan based on the trademarkwell-known degree is divided into renowned trademark and famoustrademark. Famous trademark is not limited to within Japan. A trademarkof the same class in the well-known degree of difference is relativelysmall.For well-known trademark, both China and Japan implement thetwo-track system of administrative and judicial. Judicial determination isrequired to adhere to case-by-case confirmation principles. But in practice,the well-known trademark in China carries some significance beyond thecase, such as advertising, government performance; well-knowntrademarks in Japan do not carry such significance, only effective in somecases. The special protection of the well-known trademark in chinadistinguishes between registered ones and unregistered ones, onlyregistered well-known trademarks implement trans-category protection.To determine the scope of trans-category protection, it applies to thedoctrine of confusion. There is no distinguish between registeredwell-known trademarks and unregistered well-known trademarks in Japan,but take different protection measures depending on the well-knowndegree of trademarks. To determine the scope of trans-category protection,renowned trademark is applicable to the generalized doctrine ofconfusion while famous trademark is applicable to the doctrine ofdilution.For determination of civil liability after infringement, both Chinaand Japan include the requirement for others to stop the infringement,compensation for losses and so on. To determine the tort liability requiresthe perpetrator have subjective fault in Japan, the people own such rightis responsible to the burden of proof while it implements the presumptionof fault principle in China. The amount of damages, the statutory standardin the Chinese law is five hundred thousand, but Japan has no suchstatutory compensation.China can learn from Japan's practice to take different measures toprotect the well-known trademarks according to the level of well-knowndegree, to make the scope of trans-category protection match with the well-known degree of trademark.