Research On The Legal Regulation Of Well-known Trademark Dilution

Well-known trademark is a trademark with high reputation and popularity in the relevant public. Trademark dilution refers to the actions undertaken by a third party without authorization, using the similar or identical part of a well-known trademark in non-competing goods or services, causing the distinctiveness of the said trademark in and of itself to be lessened. Dilution is usually divided into three categories:blurring, tarnishment, degeneration. It is a kind of special trademark infringement, unfair competition, unjust enrichment as well as violation of society's interests as a whole. The legitimacy of legal regulation on well-known trademark dilution rests in the following points, first it is a break to the traditional confusion theory of the break, then it makes up for the defensives and united trademark system, third it greatly adapts to the development of trademark function.Theoretically, the current international legal regulation on well-known trademark dilution are based on the "dilution theory", which thinks that any improper use by any person of well-known trademarks, may dilute, weaken or even tarnish the trademark of its recognition and significance, as well as damage the reputation of the mark, and cause great losses to the trademark owner, therefore, the above actions shall be prohibited. Dilution theory has extended the protection on well-known trademarks, because it's no longer used "confusion" as the element in determine dilution. Legislatively, legal regulation on trademark dilution first appeared in the "Paris Convention", then be perfected in TRIPS Agreement, WTPO "Model Provisions" and "joint recommendations". The U.S., France, German have been examples of legislation on dilution, for their solid theoretical basis, enriched content and reasonable structure, from which has much to learn.The performances of trademark dilution are of diversity in practice, there are 5 different types in specific, which include using other's well-known trademark in non-competitive goods or services, using other's famous trademark as company name, or as product name, packaging, decoration, using improperly in advertising, and registered as domain name and so on.In determining dilution, we should note that the object dilution against should be strictly limited to well-known trademarks; the diluted actions must actually be performed; the said actions have caused confusion or likelihood of confusion; lastly, when we determine whether an action is dilution or not, the perpetrator's subjective fault should not be considered as constitutive requirements. Besides, there are three exceptions for dilution:prior rights protection, fair use, and non-commercial use.The dilution theory and legal regulation are still new in China, and the protection for well-known trademarks also needs time to get improved. there are still some deficiencies in dilution regulation, like the morbidity of the system, the uncertainty of the concept, the immaturity of the identified standards, and the lack of reasonable legal liability. In response to these deficiencies, We should introduce and internalize the advanced theoretical study and legislative experience of other countries, enrich and improve China's legal regulation system on well-known trademark dilution.