| In terms of China’s current legislative status,well-known trademarks which have fulfilled the registration procedures can obtain cross-class protection while unregistered well-known trademarks can only obtain the protection within the same kind or similar kind.However,there are some controversies about whether unregistered well-known trademarks should obtain protection which is beyond a special class.The reasons to support that well-known trademarks which have not fulfilled the registration procedures should not get protection regardless of the merchandise categories include: Firstly,the cross-class protection of unregistered well-known trademarks is incompatible with China’s trademark registration system.Secondly,the right boundary of the unregistered well-known trademark is not clear,and the cross-class protection of the unregistered well-known trademark may lead to the improper expansion of the right of the unregistered well-known trademark.The arguments in favor of cross-class protection for unregistered well-known trademarks include: First of all,the popularity of unregistered well-known trademarks does not match the degree of protection it receives because it does not obtain cross-class protection.Secondly,from the international point of view,it is an international trend to continuously strengthen the protection of unregistered well-known trademarks,and it is not in line with the international trend that China does not carry out cross-category protection of unregistered well-known trademarks.Whether the unregistered well-known trademark should get cross-class protection is a controversial issue,no consensus has been reached yet.An unregistered well-known trademark shall obtain cross-class protection.First,the cross-class protection of unregistered well-known trademarks has theoretical justification.Well-known trademarks can obtain stronger protection than ordinary trademarks because of their high popularity,which brings cross-class influence.Because of cross-class influence,cross-class protection should be carried out.The presence of such cross-category influence is only related to the popularity of the trademark,and has nothing to do with whether it is registered.Therefore,the unregistered well-known trademark should also obtain cross-class protection.The association theory in trademark law and some theories in marketing provide the theoretical justification for the protection which is beyond merchandise categories for the well-known trademarks which do not finish the registration formalities.Second,it is necessary to protect unregistered well-known trademarks across categories.The CPTPP agreement stipulates that unregistered well-known trademarks should get crossclass protection,and China is willing to join the CPTPP agreement.The provision of cross-class protection of unregistered well-known trademarks can make institutional preparation for joining the CPTPP agreement.In addition,the protection which is not limited in the same class for the well-known trademarks which do not finish the registration formalities can also be helpful to the regulation of malicious trademark squatting.Thirdly,the protection of unregistered well-known trademarks is strengthened and this phenomenon is an international trend.The protection of unregistered well-known trademarks in International conventions and documents is constantly strengthened.And Germany’s reputable trademarks and Japan’s famous trademarks can also get cross-class protection.The cross-class protection of wellknown trademarks which are not registered in China is consistent with the international trend.Fourth,although the cross-class protection of unregistered well-known trademarks may bring the problem of unclear right boundary,it is actually the result of reasonable division of the cost of property right delimitation.For unregistered well-known trademarks,competitors are the minimum cost burden of property right demarcation.Therefore,the law should not impose the obligation of property right demarcation on the right holder,and require the right holder of the unregistered wellknown trademark to carry out cross-class protection after registration.The Trademark Law should impose the cost of property right delimitation on competitors,and require them to actively search for the existence of similar well-known unregistered trademarks before trademark registration or use.Because under this circumstance,it is more economic and reasonable to request the competitors to bear the cost of property right delimitation.The exemption from registration of unregistered well-known trademarks has the basis of institutional economics.In fact,the trademark law of our country has already implied the exemption from the registration of well-known trademarks.After clarifying the theoretical legitimacy and practical necessity of the protection which is beyond the merchandise categories of the trademarks which are very famous and do not finish the registration formalities.It is necessary to clarify the specific suggestions for improving the system of unregistered well-known trademarks.First of all,it is more appropriate to adopt the standard of the general public as the judgment subject of visibility.Secondly,in the relief measures of the protection which is beyond the Goods Type of trademarks which is well-known and do not finish the registration formalities,when the owner of unregistered well-known trademarks claims damages for cross-class goods,the court should use punitive damages with caution.Therefore,China’s trademark law should be amended to stipulate that while well-known registered trademarks known to the relevant public can obtain cross-class protection,it should also stipulate that well-known unregistered trademarks known to the general public can also obtain cross-class protection.Moreover,it should be made clear in Chapter VII of the Trademark Law that when the owner of the unregistered well-known trademark claims for punitive damages on cross-category goods,the court should be modest and prudent. |
