| Since the Paris Convention for the Protection of Industrial Property, the protection of well-known trademark has expanded. At beginning, the protection is only limited to identical or similar goods/services, but further developed into trans-category protection. Based on trans-category protection, countries and regions such as those in EU expanded the protection concerning well-known trademark. According to the provisions of the trademark directive of the European Union, there're 3 types of well-known trademark infringement, namely a use without due cause of a sign identical with or similar to a registered mark which (1) would be detrimental to the distinctive character of the registered mark, or (2) would be detrimental to the repute of the registered mark, or (3) takes or would take unfair advantage of the distinctive character or reputation of the registered mark. This provision was accepted by most of EU members and had become domestic provision. The third type of aforesaid infringement is referred to as "free-riding". With the continuous development of the commodity economy, and increasing competition, more and more free riders appear in the field of trademark, for free riding behavior of the case also emerge in an endless stream. In spite of the legislative level, the European Union has not made a detailed explanation of it. EU explained the free-riding theory by specific cases, which attracted attention all over the world. Under the impact of EU, the Supreme Court of China introduced the judicial explanation concerning well-known trademark in 2009, and Article 9.2 prescribed the condition of "taking advantage of the market reputation of well-known trademark", but the application of this provision has faced many difficulties and controversies. Thus this article will take the free riding theory of European Union as a sample to develop the actual and appropriate definition and application of this theory, trying to find out the boundary of the protection of well-known trademark, and how can this theory be adopted by China. In this article, the free riding theory will be discussed from the following four parts:The first part introduces the evolution of free rider theory and its current situation in China. The development of this theory nearly focused in Europe. On legislation perspective, this theory has been accepted by EU Directive and European Community Trade Mark Regulation; on the judicial perspective, ECJ has explained the definition and application from Intel case, Mango case, L' Oreal case, Whirlpool and Interflora case, which has established the framework of free-riding theory. As for China, there's a regulation relevant to this theory, however, it still not be accepted by scholars and judges, thus the application of this theory becomes a question that need to be solved.The second part compares the free riding theory and dilution theory. This part analyzes the basic elements and criteria of these two theories separately, and finds out that the trademark be protected by these two theories shall enjoy remarkable reputation, and the there shall be a link between the well-known mark and the third party's mark. The most important difference between free riding and dilution is that, dilution focus on the damage of trademark's distinctness and reputation, while free-riding focus on the unfair advantage taken by the third party.The third part discusses the rationality and injury of the existence of free riding and concluded that the application of free riding theory should be cautious to avoid breaking the balance of the market. This part also points out the restriction of application of free riding theory.The last part focuses on the protection boundary of the well-known trademark under free-riding theory. After introspecting the free riding theory, this party mainly discusses how can we adopt this theory in the protection of well-known trademarks of China. |
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