A Study Of Well-known Trademark Anti-dilution In China

In recent years, with the rapid growing number of civil and administrative cases related to well-known trademark, confusion rule in trademark infringement is not enough for well-known trademark protection. The intrinsic value of well-known trademark contradicts deficiency of trademark infringement rule.From theoretical and practical perspectives, the main problems in well-known trademark anti-dilution protection are the comprehension of trademark anti-dilution, the existence of well-known trademark anti-dilution regulations and well-known trademark anti-dilution listed in trademark infringement regulations.Trademark anti-dilution protection is originated from United States. After decades' judiciary practice, initiate definition of trademark anti-dilution evolved into blurring and tarnishment by Trademark Dilution Revision Act(TDRA) in 2006. The meaning of dilution theory is much clearer with the analysis of the discrepancies between dilution, confusion and association and contradictive interpretation of article 16(3) in TRIPs. The core of dilution theory is that the junior trademark will distract consumers' attention, which used to connect the well-known trademark owner's products and the well-known trademark. Traditional trademark infringement takes confusion theory as standard to protect consumers' interest from being hurt while dilution theory focuses on the interest of well-known trademark owner. As trademark with higher distinctiveness, the possibility of association is getting stronger but the possibility of confusion may increase and then decrease. Anti-dilution aims at trademark with high distinctiveness but hardly gets confused.Trademark law and its judicial interpretation contain controversial regulations. Concerning the source of relative articles, administrative opinion and judicial opinion present different interpretations on their views. The trademark review board disagrees with dilution regulations under trademark law and other relative rules and confusion is the only standard to decide infringement or not and they maintain prudent attitude toward enlarging well-known trademark protection. The court claims that trademark protection scope should associate with the fame of the trademark, which means more protection for higher fame mark.Combining study with foreign legislation and judicial opinion, anti-dilution protection aims at registered well-known trademark to maintain fair competition and do not extend to marks of that type in identical or similar goods. Article 57 of Trademark Law should contain anti-dilution clause as a conduct of infringing trademark exclusive right with sufficient theoretical discussion and practical need.