Research On The Mode For Anti-dilution Of Well-konwn Trademarks In China

The theory of anti-dilution of well-known trademarks originates from the United States.The so-called trademark dilution refers to the weakening of the distinctiveness of well-known trademarks as a result of the use of trademarks similar or identical with existing well-known trademarks in products or services which are not similar or different,although such use does not cause confusion.Well-known trademark dilution and confusion,parody and hitchhiking behavior have a lot of similarities,we need to distinguish between these concepts and well-known trademark dilution there is a clear boundary.The constitutive standards of dilution of well-known trademarks in various countries are not exactly the same in details;however,the three requirements shall be similar,no confusion and the possibility of association.For the theoretical research and practice of anti-dilution of well-known trademarks,the United States and the European Union have their own characteristics,Japan also has a certain reference.Cross-category protection of well-known trademarks in China is earliest seen in Paragraph 3,Article 13 of the Trademark Law: "Where a trademark,for which an application for registration is filed,of a different or dissimilar commodity is the copy,imitation or translation of a well-known trademark of others which has been registered in China,misleads the public and is likely to cause damage to the interests of the registrant of that well-known trademark,it shall not be registered and shall be prohibited from use." In simple terms of the literal meaning,it is difficult to determine that the provision stipulates the anti-dilution protection of well-known trademarks.Until the implementation of the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks in 2009,Paragraph 2 of Article 9 thereof provides that: "Where it is sufficient to enable the relevant public to believe that the alleged trademark and well-known trademark have a certain degree of connection,and weaken the distinctiveness of the well-known trademark or derogate the market reputation of the well-known trademark,or improper use of the market reputation of the well-known trademark,it belongs to the circumstance that" misleads the public and may cause damage to the interests of the registrant of the well-known trademark "as specified in Paragraph 2 of Article 13 of the Trademark Law,and provides a legal basis for the anti-dilution system for well-known trademarks of our country." However,due to the ambiguity of the terms,the courts in different parts of the judicial practice do not understand the same,the lack of a unified standard,so that similar cases appear completely different judgments.By collecting the cases in which the two regulations mentioned above are applied in the judgment on disputes over dilution of well-known trademarks in recent years from judicial practice and analyzing and summarizing the overall characteristics of the cases and the judgment,different understandings and viewpoints of judges in trying such cases can be found.There are mainly two kinds of views on the theory of anti-dilution of well-known trademarks: one is to support the theory and give anti-dilution protection to the parties concerned,but part of which is directly based on the theory of dilution,and the other is based on the theory of confusion;the other is that the two laws actually stipulate the theory of confusion,although the use of the two articles of law,in fact the final decision is to confuse.And on the basis of sorting out and analysis,the dilemmas faced by the anti-dilution system for well-known trademarks are further pointed out:(1)the relevant legislation is not perfect;(2)the relationship between the anti-dilution protection system and the Anti-unfair Competition Law is to be coordinated;(3)there are still problems in the determination of well-known trademarks;and(4)the anti-dilution subjects do not match the protection efforts.Based on the theoretical description and empirical analysis,combined with the experience of the European Union,the United States and Japan,this paper puts forward some suggestions on the improvement of the anti-dilution system.Firstly,legislative protection shall be improved and a special anti-dilution clause shall be established formally,which shall be incorporated into Article 6 of the Anti-Unfair Competition Law.The basis of anti-dilution protection of well-known trademarks may be extended from trademarks to appearance of commodities,corporate name and domain name webpage at the same time.Paragraph 3 of Article 13 of the Trademark Law shall be deleted to limit the protection scope of the Trademark Law to confusions and comply with the current situation that the Trademark Law of China bases its protection on the theory of confusion.Secondly,existing well-known trademarks in China are divided into "trademarks with certain influence" and "well-known trademarks".The latter is more well-known and therefore endows the former with the same type of anti-confusion protection and cross-type anti-confusion protection and the latter with the same type of anti-confusion protection and cross-type anti-dilution protection,so as to solve the problem of inconsistency between the subjects of anti-dilution protection and the protection efforts.Lastly,relevant supporting measures,such as joint conference system,intensification of law enforcement and intensification of guidance and publicity,shall be carried out to help consumers build the awareness of anti-dilution of well-known trademarks.