| Well-known trademarks are an important part of the trademark system,and the protection of well-known trademarks has also been continuously improved along with the development of related theories of trademark law.The 1911 "Paris Convention" Diplomatic Conference proposed the first relevant proposal on the special protection of well-known trademarks.In 1994,the TRIPS Agreement formally established the relevant rules for the cross-category protection of well-known trademarks,and the protection rules for well-known trademarks have also been improved day by day.Defensive trademarks play an important role in constructing "pre-prevention" and have special value in the protection of well-known trademarks.Defensive trademarks,as their name implies,play a defensive role in the protection of well-known trademarks.They refer to the same trademarks that the right holders of well-known trademarks apply for registration on goods or services of different categories from the well-known trademarks.Its purpose is to prevent other market entities from being in different categories.Registering or using the same logo on the goods or services of the Company harms the interests of the well-known trademark right holders.At present,there is a lack of effective "pre-prevention" mechanism in the protection of well-known trademarks in my country,the uncertainty of cross-category protection,and the conflict of rights between well-known trademarks and previously registered ordinary trademarks,etc.,resulting in high costs for well-known trademark rights holders.,The difficulty of safeguarding rights has hindered the development of the brand economy.my country’s current research on defensive trademarks is insufficient,and the existing research only stays at the level of introducing the Japanese system.Therefore,it is necessary to analyze the necessity and feasibility of establishing a defensive trademark system in my country based on the current status of my country’s current well-known trademark protection,and construct the specific content mechanism of my country’s defensive trademark system accordingly.The introduction part of the article puts forward that many Chinese companies currently have actual needs for defensive trademarks,but the legal system has contradictory problems.Secondly,it explains the research value and significance of the article,then combs the research status of the research topic at home and abroad,and finally introduces the main research methods,the structure of the paper,the main innovations and deficiencies of the paper.The body of the article is divided into four parts,as follows:The first chapter analyzes the relevant theories of defensive trademarks,the origin and system development of defensive trademarks,and conducts a comprehensive analysis of the basic theories of defensive trademark systems.In addition,it analyzes the relationship between defensive trademarks and well-known trademarks,and based on the argumentation of the theory of cross-class protection of well-known trademarks,lays the foundation for the necessity and feasibility analysis of defensive trademarks.The second chapter analyzes the essentiality of the establishment of a defensive trademark system: first,through the combing of existing judicial cases and the policy documents issued by local governments concerning defensive trademarks,analysis and demonstration of the reality of the existence of defensive trademarks by current market entities demand.Secondly,through the combing and analysis of relevant judicial cases,it is concluded that the current well-known trademark protection in my country has shortcomings: well-known trademark protection only has post-event relief and lacks an effective pre-prevention mechanism;my country’s current well-known trademark cross-category protection is largely uncertain.This makes it more difficult for market entities to determine the right boundaries of well-known trademarks,and the predictability of judicial judgments is poor;the current cross-class protection of well-known trademarks has conflicts of rights with other registered trademarks.Finally,it analyzes and summarizes the value and significance of the defensive trademark system in solving the aforementioned problems,and demonstrates the necessity of constructing the defensive trademark system.The third chapter analyzes and demonstrates the theoretical feasibility of the construction of my country’s defense trademark system on the basis of the foregoing necessity argument: first,the tripartite subjects under the defense trademark system-well-known trademark owners,consumers,are analyzed through the theory of the balance of interests in intellectual property rights.The authors and other market competitors conducted an analysis of their interests,and concluded that the defensive trademark system did not break the balance of interests among various subjects.Secondly,by introducing the theory of law and economics,from the perspective of cost-benefit analysis,the problem of social cost-benefit in the two different situations of the defenseless trademark system and the existence of the defensive trademark system is compared,and it is specifically determined that the defensive trademark meets the Kaldor-Hicks efficiency theory.On the basis of the theoretical feasibility demonstration,combined with the extraterritorial defensive trademark system,a comparative demonstration of the extraterritorial system was carried out to strengthen the feasibility of the construction of the defensive trademark system.The fourth chapter constructs the specific content of my country’s defensive trademark system on the basis of the foregoing necessity and feasibility argument.It mainly includes three aspects: First,the basic concepts of defensive trademarks:including the basic elements and models of defensive trademarks.The second is the procedure for defensive trademark identification: including judicial and administrative identification modes in parallel,without considering confusing factors.Finally,the effectiveness of defensive trademarks: including the limited right to prohibit defensive trademarks,dynamic changes in the effectiveness of defensive trademarks,and determination of the use of defensive trademarks.The conclusion part summarizes and analyzes the full text and puts forward a draft of the relevant legal provisions of the defensive trademark system in the appendix. |
