The Analysis On The International Protection System Of Well-known Marks

There is a systematic and preliminary analysis on the international protection system of well-known marks. It is made up with three chapters: the first chapter introduces the international protection system of well-known marks briefly; the second chapter evaluates and analyses the international protection system of well-known marks; the last chapter discusses how to perfect the international protection system of well-known marks. Chapter one summarizes well-known marks firstly. Pointing out that there is no conception generally acknowledged of well-known marks in the world at present, few countries'Trademark Law make a conception of well-known marks. Scholars of many countries have tried to make a conception, but not satisfactory. The researcher thinks that we should pay attention to the problems of "the territory scope of well-known", "enjoying the higher report whether is the necessary condition", "scope of public"and so on. Then, the researcher analyzes two views on the character of well-known marks and points out that the character of well-known marks can be seen in two respects. In the factual respect, it is the mark that can enjoy the special protection in correspondence with the common mark; in the jural respect, it exists in the international conventions as a method of protecting marks. Finally, the researcher introduces the main contents of Paris Convention for the Protection of Industrial Property (Paris Convention for short), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement for short) and Joint Recommendation Concerning Provisions on the Protection of Well-known Marks (Joint Recommendation for short), in order to make readers comprehend the international protection system of well-known marks. Paris Convention stipulates that the owner of well-known marks has the rights of asking the authority to refuse or to cancel the registration, and to prohibit the use of a trademark that constitutes a reproduction, an imitation, or a translation, liable to create confusion. The provision shall also be applied when the essential part of a trademark constitutes a reproduction or an imitation, liable to create confusion. TRIPs Agreement stipulates that the three rights stipulated in Paris Convention can be applied to the service trademarks directly; it brings forward a principle provision on determining whether a trademark is well-known; article 6bis of the Paris Convention shall apply to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use. Joint Recommendation stipulates the determination of well-known marks; the scope of protecting well-known marks includes conflicting marks, conflicting business identifiers and conflicting domain name. Chapter two evaluates and analyzes Paris Convention, TRIPs Agreement and Joint Recommendation separately. Paris Convention breaks the strict "territority"limitation on the protection of the intellectual property, breaks through the principle of "protection independently", and starts the precedent of "transnational protection"; in irrespective of the differences of trademark laws and systems in countries, it asks member states to carry out the same protection system in the field of protecting well-known marks; It puts the registered well-known marks and the unregistered on the same balance, the unregistered well-known marks can antagonize the registered common marks. TRIPs Agreement brings forward higher standard for protecting well-known marks than Paris Convention. It broadens the space range of international protection of well-known marks; it enlarges the scope of protecting well-known marks to banning using the same or similar marks on the goods or services which are not similar, but well-known marks here must be registered; Joint Recommendation is the first to stipulate the factors for consideration, factors which shall not be required and relevant sector of the public when determining well-known marks. It makes that there is yarage in practice when determining well-known marks; it enlarges the antagonizing rights of well-known marks. Well-known marks can antagonize not only thetrademark but also business identifiers and domain name; it stipulates the anti-dilution protection of well-known marks. Though the evaluation and analysis above, we can get the idea that the international protection of well-known marks is perfecting, and the international protection system of well-known marks is forming gradually. Chapter three discusses the perfection of the international protection system of well-known marks. The researcher thinks that there is an independent system on the protection of well-known marks, but the system has deficiencies and should be perfected. First of all, stipulating the determination standard of well-known marks in the international convention clearly. The researcher discusses the necessity firstly, and then points out, by resolving three problems including "whether the well-known marks must be well-known in the own country", "enjoying higher report"and "the actual use"are not the conditions about determining well-known marks, that we can determine well-known marks in both the factors for consideration and factors not be required referencing Joint Recommendation; secondly, increasing the provisions on anti-dilution protection of well-known marks. The researcher defines what is dilution of well-known marks firstly, and discusses the necessity of anti-dilution international protection of well-known marks, then analyzes the dilution inscape of well-known marks, in, finally the researcher thinks that it can be stipulated in the convention like this: using the same or similar trademark as well-known mark in the goods or services which are not similar, that may reduce, weaken the discernment and distinctiveness of well-known marks, the owner of well-known marks has the right to put forward the lawsuit, forbidding the defendant using the same or similar trademark as his well-known mark. And if he can prove that the defendant utilizes his reputation or dilutes his well-known mark deliberately, he has the right of monetary relief in addition; thirdly, increasing the legal system on the confliction and coordination between well-known marks and domain name,firstly, the researcher discusses the root of the confliction between well-known marks and domain name and the necessity of coordination, and analyzes the forms of confliction between well-known marks and domain name, then discusses the balance of interests in the confliction between...