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Special Protection of Famous Trademark

Author: XuYuQin
Tutor: WangLianFeng
School: East China University of Political Science
Course: Legal
Keywords: Famous Trademark Special Protection anti-dilution theory
CLC: D923.43
Type: Master's thesis
Year: 2008
Downloads: 82
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Abstract

After its accession to the "Paris Convention", China has made tremendous achievements in legislation and law enforcement for the protection of well-known trademarks through useful exploration and accumulation. However, China’s "Trademark Law" has no specific regulation for the protection of well-known trademarks; neither does it involve theories on dilution of well-know trademarks. As well-known trademarks are increasing in China and related infringements and unfair competitions occur more and more frequently, the necessity and urgency for the protection of well-known trademarks are growing. Considering this, the author wrote this thesis, in which the author reviews and deliberates the history of the protection of well-known trademarks, sums up the experience on the implementation of existing laws, and refers to international treaties as well as experiences of other countries. The author expects that the third amendment to "Trademark Law" may include regulations for well-known trademark protection which are in line with the China’s national conditions as well as the international practice of system.The thesis is divided into four chapters. Each chapter discusses from different angle as showed as following.The topic for the first chapter is the special protection for well-known trademarks in international conventions. The first discussion is about the protection in Paris Convention, which is mainly to prevent the rush registration of well-known trademarks. Secondly, the discussion focuses on the protection in TRIPS, which emphasizes the importance of TRIPS in the well-known trademark protection. Finally, the author introduces the Joint Proposal, which sets out the domain and provisions for well-known trademark protection, and compares the differences of the Joint Proposal and the Paris Convention, to form a basis for further discussion in the following chapters.The second chapter is devoted to a systematic introduction on the theories of dilution of well-known trademarks. Starting by the definition of dilution, the author introduces the definition, characteristics, appearance and association theory. Then the author lists the ways for avoidance of dilution adopted in both the civil law countries and common law countries. Since USA has separate legislation on dilution of well-know trademarks, which are also relatively mature, the author introduces USA’s Anti-dilution Law as a focus. At the same time, the author also points out some of the disputes arise in the implementation of the Anti-dilution Law.In Chapter three, the author mainly analyses the legislation and practice for well-known trademark protection in China. The Analysis is down in two aspects:the legislation and judicial practice. The elaboration starts by introducing the history of legislation on protection of well-known trademarks in China’s Trademark Law, then the adoption of conventions, the formation of department regulations, and finally the amendment to the Trademark Law. After the analysis, the author expounds the four aspects of the special protection to well-known trademarks by the Trademark Law. Since anti-dilution is one of the special protections and is of extremely importance, whereas there’s no clear legislation, the author analyzes in detail several dilution situations of well-known trademarks and their identification in legal practice in light of the actual cases and court decisions.The main content for the forth chapter is the improve of protection system for well-known。trademarks in China. Considering the legislation for anti-dilution of well-known trademarks is lagging behind in China, in section one, the author focuses on the individual proposals for the legislation on anti-dilution of well-known trademarks. The proposal involves topics from legislative style to the amendment to the 13th article of the Trademark Law. Finally in section one, the author calls on that the enterprises should strengthen their awareness of anti-dilution of well-known trademarks. Besides the proposals for legislation on anti-dilution of well-known trademarks, in section two, the author elaborates in detail the proposals on legislations for the protection of well-known trademarks. Referring to some cases and legislation experiences both in China and abroad, the author puts forward some personal thoughts. To sum up, in legislation, the balance principle shall be followed and strengthen the penalty clauses for infringement of well-known trademarks. For this, the injunctive Relief rule in USA law is a good example that may be referred to. In law implementation, some practices shall be adopted, such as the confirmation of performer and process for the identification of well-known trademarks, the adoption of expert evidence, the registration of enterprises’names, etc. The purpose is to improve the legislation, maintain fair competition, and protect consumers’ interests.

Special Protection of Famous Trademark

Abstract

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