Difficulties And Solutions In Protection Of Unregistered Well-known Trademarks In China

Well-known trademarks are special trademarks that have accumulated strong influence and appeal in the market through long-time use by its owners.They represent good reputation among consumers for products or services,and are the brainchild of producers and operators.The importance of well-known trademarks is self-evident.The CEO of the global beverage industry leader,"Coca-Cola" company,once claimed that,even if the factories all over the world are burned overnight,the company will be able to come alive again in a short period of time,with the famous trademark "Coca-Cola".Because of the good business reputation and commercial value that are contained in well-known trademarks,they have been subjected to much more illegal infringements and economic losses,compared with ordinary trademarks.As a consequence,well-known trademarks gets special legal protection all around the world.In China,trademark registration principle is the basic principle of trademark law.Well-known trademarks are classified into registered well-known trademarks and unregistered well-known trademarks.Just as the registered well-known trademarks,the unregistered well-known trademarks also have high status and strong attraction in market and consumers,through the endeavors of the trademark owners.Registered well-known trademarks and unregistered well-known trademarks are same valuable in the sense of trademark law.The only difference between them is whether registered or not.Because of the trademark registration principle,the protection of unregistered well-known trademarks in China is not perfect.The author believes that the two representative difficulties are the cross-type protection and the cross-territory protection of unregistered well-known trademarks:First of all,China is still in gradual development of market economy,the market order is not in a perfect condition,and the trademark infringement cannot be absolutely prohibited.Further supervision and regulation is still necessary.Under this background,the unregistered well-known trademarks have become the target of all types of infringement activities,because of their high commercial value.However,the trademark law in China does not provide comprehensive cross-class protection for unregistered well-known trademarks.When it comes to the opportunistic infringement activities,it is very difficult for trademark owners to seek for effective legal remedies from courts.On the other hand,because of the territoriality limit of trademark rights,it is also a question worthy of discussion as to how to determine the legal status of foreign well-known trademarks that have not been registered in China yet,and what kind of protection attitude should be adopted.This article comprehensively uses the literature research method,comparative research method and case analysis method.First of all,it analyzes the international origin and development of the unregistered well-known trademark system,as well as China's unregistered well-known trademark protection system and the problems it has suffered.On this basis,it further proposes the high-possible dilemma of unregistered well-known trademark systems in the future:cross-class protection and cross-territory protection.This is the focus point of this article.The first important issue is the cross-class protection of unregistered well-known trademarks.The author has started from the perspectives of anti-dilution cross-class protection and anti-confusion cross-class protection.The specifically arguments of this issue is:The value of well-known trademarks lies in the value behind themselves,and the commercial value obtained due to the diligent work of the owners.The legal protection of well-known trademarks comes from trademark and goodwill itself.The key purpose of the trademark registration system is to facilitate the management of trademarks,regulate market order,and to protect the legitimate rights and interests of consumers,rather than to determine whether value of a trademark through register.Therefore,if the trademark owners didn't fail trademark registration due to malicious and sluggishness,unregistered well-known trademarks should break through the restrictions of the registration principle and receive cross-class protection relief.The other important issue is the cross-territory protection of unregistered foreign well-known trademarks.Currently,China has a clear provision for the protection of trademarks that have not been registered but have actually been well-known in China.Based on the situation above,the article further discussed the following issue:How to identify those unregistered foreign well-known trademarks which do not meet the well-known standard in China?And how to protect them?The author divides this question into two kinds of situations:unregistered foreign well-known trademarks that are famous but not well-known in China,and those unregistered foreign well-known trademarks that are not famous in China.Under this premise,the specific protection and identification methods of China,the United States,and Japan were separately introduced.Last but not least,with the blueprint for the future by TPP agreement and the"Common Proposal for Well-known Trademarks",this article proposes solutions to the above problems based on the author's own thinking.This is also the result and innovation of this article.The author proposes to implement conditional cross-class protection for unregistered well-known trademarks;and to improve relevant laws and regulations on cross-territory protection,implement classified and appropriate territory protection policies,with the establishment of database to promote legal awareness among enterprises.In this way,we can improve the protection of unregistered well-known trademarks from multiple aspects.