| In China,registered well-known trademarks and unregistered well-known trademarks are given different levels of protection.While registered well-known trademarks are protected across categories,the scope of protection for unregistered well-known trademarks is limited to the same or similar goods or services.This provision leads to insufficient protection for unregistered well-known trademarks.From the practical point of view,there are many cases caused by the lack of cross-category protection for unregistered well-known trademarks,and the legislation cannot provide substantial cross-category protection for unregistered well-known trademarks.There are three reasons for the lack of cross-class protection for unregistered well-known trademarks.Firstly,the logic of providing distinguished protection for trademark with or without registration is improperly extended to the well-known trademarks.Secondly,our well-known trademark system is derived from the well-known trademark system in international conventions.Thirdly,the unregistered well-known trademarks themselves have unclear rights boundaries due to the lack of registration.It is difficult to provide cross-class protection for them.Based on the above,this paper analyzes the justification of cross-class protection of unregistered well-known trademarks from the following three aspects.Firstly,from the perspective of the essence of unregistered well-known trademark protection,the logic of distinguishing protection for trademarks with or without registration cannot be directly applied to well-known trademarks.Moreover,the popularity of unregistered well-known trademarks has already achieved the effect of public notice.The core of China’s trademark system is "registration priority and taking into account the use".The increase of cross-category protection for unregistered well-known trademarks is precisely in practice of this principle.Most importantly,in theory,a well-known trademark can obtain trademark rights through use add famous.The second justification lies in the current international trend of giving cross-class protection to unregistered well-known trademarks.China initially introduced the well-known trademark system in order to comply with the requirements of the Paris Convention.However,with the TRIPs Agreement and WIPO’s joint recommendation on the protection of well-known trademarks,both are strengthening the protection of unregistered well-known trademarks.In particular,the CPTPP agreement,which China applied to join,explicitly requires cross-class protection for unregistered well-known trademarks.In addition,the United States,Germany and Japan all provide strong protection for unregistered well-known trademarks.The third basis of legitimacy is analyzed from an interdisciplinary perspective.From the perspective of economics and semiotics,unregistered well-known trademarks should receive cross-class protection.After providing sufficient theoretical basis for the cross-class protection of unregistered well-known trademarks,this paper would like to discuss the choice of the protection means for unregistered well-known trademarks.Judging from the current legislation as well as judicial cases in China,the acquisition of trademark use has not yet been firmly based on reality.In view of the fact that there are already provisions of well-known trademarks in China’s trademark law,it is not suitable to hand over to the unfair competition law to regulate unregistered well-known trademarks.China can refer to the practice of Germany and consider using well-known trademarks as a way to obtain trademark rights directly,and explicitly provide for cross-class protection for unregistered well-known trademarks in the trademark law.From the theoretical basis of cross-class protection for unregistered well-known trademarks,it is not only necessary to strengthen the protection of trademark dilution for unregistered well-known trademarks,but also to prevent cross-class confusion for unregistered well-known trademarks.After determining the protection path in China,the issues to be considered are what kind of protection to provide and the limits of protection.There are limits to whether the other party can be held liable for damages,and punitive damages should be applied with caution.We should adopt the associated public standard and the general public standard,respectively,based on cross-class confusion and dilution as the dividing line.For cross-category protection under cross-category confusion,the criteria for determining the scope of the public shall be the public familiarity with the goods and services used by the unregistered well-known trademark as well as the goods and services crossed by the category.For cross-category protection based on dilution,the general public standard shall be applied. |
