The Legal Application Of Relevant Provisions Of Trademark Law From The Perspective Of Trademark Dilution Theory

The doctrine of trademark dilution originated from the judicial precedent of the United States,and was later adopted by the legislation,both of which have experienced a long period of development.Since the implementation of the relevant provisions of "trademark dilution" in China,it has been applied by most courts as a reason for adjudication.Since the legislation on "trademark dilution" is too principled and abstract,and there is no clear concept and recognition standard,it has led to the divergence of judicial practice.By combining the empirical analysis of judicial cases,it is found that the courts in the trial of trademark dilution infringement on the legal application of trademark-related provisions is vague and unclear,and the principles and factors considered vary,the phenomenon of different judgments in such cases often occurs.Although many scholars have studied this issue,most of them have not formed a unified opinion on the judgment of "whether the act of dilution has been implemented".Through the normative analysis of the relevant provisions of the Trademark Law,the application of the relevant provisions of trademark dilution in judicial practice,the legal application of the elements of trademark dilution in civil and administrative cases,the combination of overseas legislation and judicial precedents,and the discussions already made in the theoretical circles,this article makes a comprehensive analysis of the rules applicable to trademark dilution.The most important thing is to introduce the theoretical basis of "trademark dilution" in the legislation,rather than limiting it to the principal provision of Article 13(3)of the existing Trademark Law.As to how to construct the criteria for the legal application of "trademark dilution" in judicial practice.the preliminary view of the article is that the unregistered trademark has reached a well-known status sufficient to obtain the public notice function of trademark registration.Moreover it has the substantive conditions for dilution protection without taking "registered" as a prerequisite.After eliminating the "registered" element,based on the principle of strong protection of trademark dilution,the protection of trademark dilution is redefined as a trademark that is widely known to the general public in China,i.e.,the protection of trademark dilution is strictly limited,and only very well-known trademarks can obtain anti-dilution protection.Secondly,the subjective similarity test of the trademark confusion theory cannot be transplanted to the judgement of trademark dilution,the reason being that trademark dilution occurs on cross-class goods or services,and only if the trademarks are identical or substantially identical or highly similar will it trigger consumers’ association with the prior trademark,which in turn will produce the possible damage result of dilution.To ensure that the expansion and limitation of rights correspond,an exception for fair use should be added.At the same time,trademark dilution is not an objective consumer psychological perception,and the abstract consumer perception should be objectified,and the evidential effect of consumer investigation should be recognized in the determination of the possibility of dilution,so that the determination of trademark dilution is more reasonable and scientific.The rules for determining "trademark dilution" in judicial practice should be unified in order to resolve the conflict between judicial and administrative determinations,and to regulate the process of judicial interpretation.