Analysis On The Determination And Special Protection Of The Well-known Trademarks

This paper, titled "Analysis on the Determination and Special Protection of theWell一known Trademarks",made a research and discussion on the related problemsof well-known trademark determination and protection.The paper is divided into fourparts.The first chapter discussed the basic theory of well-known trademark. Firstthrough the "Paris Convention on the Protection of Industrial Property",“AgreementOn Trade-related Aspects of Intellectual Property Right” and "Joint RecommendationConcerning Provisions on the Protection of Well-Known Marks" and our country lawabout the well-known trademark of the relevant provisions for the well-knowntrademark meaning make the basic definition. At present,the definition of thewell-known trademark is that in the territory of China widely known marks by therelevant public brand.Then I make an analysis and discrimination about the conceptof well-known trademark,famous trademark, well-known trademark and brand, whichleads to the last part of the several special features of well-known trademark thatdistinguishes itself with common trademark: high recognition in the considerable sizeof the geographical range; highly known by the public; a long period usability in themarket; not necessary whether the trademark is registered or not; and a request ofidentifying by the national legal authorities.The second chapter is about the recognition of well-known trademark. First ofall, I made an analysis on the factors that need to be consider when recognizingwell-known trademark through three levels which is the well-known trademarkgeographical range, the relevant public and visibility. I drew the conclusion that it’simproper to simply divide marks into well-known trademarks and not well-knowntrademark. When considering the trademark is well-known or not, it supposed to be acombine result of geographical range,the relevant public and visibility.Secondly Idisserted the recognition methods of well-known trademark systematically.There aretwo methods in China at present—administrative identification and judicialidentification.I analyzed the advantages and disadvantages of each of these two kinds of mode, and I affirmed the rationality of our current mode of recognition which isbase on administrative identification and supplemented by judicial identification. AndI found the nature of our judicial determination of factual determination and drew theparties confirm the claim is not suitable for well-known trademarks in the main textof the judgment of the conclusions to be identified.The third chapter is about the practical considerations about the well-knowntrademark. Firstly, I introduced legislation of the international conventions on theprotection of well-known trademark.and I analyzed the the advantages anddisadvantages of the three international Conventions above." Paris Convention on theProtection of Industrial Property" for the first time defined the well-known trademarksystem and broke the previous mark territorial theory.“Agreement On Trade-relatedAspects of Intellectual Property Right” extended the scope of well-known trademarksobject from the trade marks to the service marks, and extended the scope ofprotection to prohibit not similar goods or use the same or similar services andwell-known trademarks."Joint Recommendation Concerning Provisions on theProtection of Well-Known Marks" expanded the scope of protection to unregisteredwell-known trademarks, and once again extended the scope of well-knowntrademarks object to the vendor name, domain name and other commercial mark,which leaded to further increased protection. Secondly, I made an introduction ofother national legislation and practice in their well-known trademark protectionsystem. America ’s contribution to the well-known trademark protection regimeembodied in the anti-dilution theory.The definition and the three manifestations ofanti-dilution theory made a fundamental elaboration in the paper. At the same time,Ialso introduced French and Japanese legislation on the protection of well-knowntrademark which is worth our reference in order to make our well-known trademarkprotection system more progressive.Chapter four is about the interpretation of well-known trademarks of specialprotection system in China. Firstly,I reviewed the development of regulations andlegislation concerning the protection of well-known trademarks in China, from thefirst well-known trademark protection of a clear normative documents-"well-knowntrademark recognition and management Interim Provisions" to the2013"Trademark Law "Content third amendment. Secondly, I made some suggestions about improvethe well-known trademark protection in China: improve the standard of well-knowntrademark determination; properly handle the administrative and judicialdetermination of the relationship identified; improve our well-known trademarkanti-dilution system; and improve the conflicts between well-known trademark anddomain name conflicts when it comes to special protection.