Research On U.S. Well-known Trademark Identification Factors

Well-known trademarks identification is a set of legal process set up byinternational treaties and national legislations to resolve infringement disputes, butsuffered alienation in China and arouse the public’s suspicion of well-knowntrademarks system. This thesis intends to explore the essence of well-knowntrademarks identification from an international comparative perspective, especiallyinvestigate the identification factors of US well-known trademarks and compare themwith ours. Exhaustive proposals for strategy of well-known trademarks protectionsystem of China are proposed on the basis of our actual situations.This thesis is divided into three parts:Part Ⅰ “Basic Principles of Well-known Trademarks Identification” mainlydiscusses the institutional foundation and major principles of well-known trademarksidentification. There are three special protections for well-known trademarks:protection for unregistered well-known trademarks, beyond category protection forregistered well-known trademarks, anti-dilution protection for registered well-knowntrademarks. It is in the process of implementation of these special protections,emerging the demand for identificating well-known trademarks. To achieve thepurpose of resolving disputes, well-known trademarks identification should adhere tothe principles of case identification and passive protection, which meansidentification authorities could only conduct identification when statutorycircumstances and parties requests occurrence. Furthermore, the conclusion ofidentificating has not the effectiveness beyond the case.Part Ⅱ “Commentaries on US Well-known Trademarks Identification Factors”investigates the legislative evolution of US well-known trademarks identificationfactors, introduction of distinctiveness, and detailed definition of each factor. There are five identification factors under US Trademark Dilution Revision Act of2006:(1)the degree of distinctiveness;(2) the duration,extent and geographic reach ofadversting;(3) the amount, volume and of geographic extent of sales of goods orservices offered under the mark;(4) the extent of actual recognition of the mark;(5)whether it was registered. In US judicial practice, the specific requirements ofwell-known trademark identification are not uniform between courts, some have beenharmonized through federal legislation, but some still remain different.Part Ⅲ “China Well-known Trademarks Identification Factors”. Due to thespecial legal development process, China well-known trademarks identification legalsystem consisting of law, departmental rule and judicial interpretation are morecomplex than American. Synthesizing the elements of well-known trademarks legalsystem, we could generalize the identification factors into four categories:(1)thedegree of knowledge of relevant public;(2) the duration of use;(3) theduration,extent and geographic reach of adversting;(4) the protected record as awell-known trademarks. Then, this thesis compares the strength of enterprisesbetween China and US to discover the huge gap in the brand influence. In the end,this thesis bring forward several suggestions for our own interests, attempting tostrike a balance between domestic law and international law, and on this basis,enabling the well-known trademarks protection system to better protect our nationalbrand and improve the overall economic strength.