Study In Anti-dilution Of Well-known Trademark

With the rapid development of the economic globalization and China's entry into WTO, strengthening of the well-known trademark protection becomes a task of top priority. The new problems and new cases, such as the network tort and the name dispute, appeared in the judicature practices in our country, raise a new demand of the well-known trademark protection. The theory of the trademark dilution is a high level of that of the well-known trademark protection, which is a popular way of protection in the world. Based on some research achievement, this article makes a further discussion of the well-known trademark dilution from the basic theory to the practice expression and the law system .The article breaks fresh ground in the quality and construction of the trademark dilution, especially in the connection and being perfected with the trademark law system in our country.The first chapter of this article is a theory analysis on the conception, origin, actual meaning and constitution of the trademark dilution, and an illumination of the basic theory of the well-known trademark dilution.Trademark dilution refers to the act of reducing and blurring identification and distinctiveness of well-known trademark with the result of impairing or tarnishing the reputation of business. This theory was originated from America, and it was also developed in America. There are also some formulated rules in Germany and France. This theory has been embodied in international treaty like "Paris Pact" and TRIPS Agreement. Trademark dilution has a close relationship with the well-known trademark. With the development of the market economy, the well-known trademark bears many things, such as the quality of the goods and services, the prestige and symbolization of the business, the independent value. All of these become the passive-infringe object in non-competition goods. It is the objective demand to develop the dilution theory and to establish the anti-dilution protection law system for resolving the code problem of well-known trademark cross-protection.Essentially speaking, trademark dilution refers to an act, which is established under the basis of trademark rights extension, encroaches on the trademark rights. This is the basic quality of the trademark dilution. It is also an improper-competed act that violates the Law of honesty and trustworthiness, taking advantage of well-known trademark's celebrity from the holders', damaging other competitor's benefit. It is an act of misleading and inveigling the consumer and the public .The author arises that the well-known trademark dilution is also an improper benefit. Because the actor of the well-known trademark dilution has no legal or contract basis, taking advantage of the others' well-known trademark, getting benefit through the bearing value and the reputation of the trademark. The holder of the trademark loses the distinctiveness, reputation and trademark value because of the others' using the famous trademark. Moreover, there is a causality relationship between the dilution actor and the famous trademark holder.Trademark dilution requires three conditions. First, the target of trademark dilution must be the well-known trademark. Second, the actor uses the same or the similar sign of the famous trademark. Third, it must be possible that the act could cause actual loss to the diluted trademark's holder, or in some other cases, the loss has already been caused. The author thinks the trademark dilution shouldn't be composed of the actor's subjective mistakes, the differences of the mistake aspects should be embodied in the extent and the means of the legal responsibility the actor bears.The second chapter shows an analysis of the trademark dilution on the types, specific manifestation, the violating content and the manifestation in the practical aspect.We11-known trademark dilution can be divided into three categories: blurring, vilifying and degeneracy. Practically in from, the trademark dilution consists of four categories: 1. Use others' well-known trademark in different goods or services. 2. Use others' well-known trademark as the business name. 3. Use others' well-known trademark as the general name of the goods or service. 4. Register others' well-known trademark as the territory name. The trademark dilution infringes on the well-known trademark, and the distinctiveness, identification and business reputation of the well-known trademark are the important contents the trademark dilution infringes. The special distinctiveness, identification, reputation and the value of the well-known trademark have been reduced, blurred and even lost by means of the actor's using of the other's well-known trademark. The more distinctive, identifiable and reputable the well-known trademark has, the more harmful the dilution would be.Through the analysis on both theory and practice, the last chapter of the article shows some new ideas of the anti-dilution law system, containing the grant of the trademark, the extent of the anti-protection, the legal responsibility of the trademark dilution. These ideas are: First, make clearer of the dilution object--the content of the well-known trademark right, which should not only be connected with the judicature practices in order to meet the need of the reality, but also has the qualities of advance and foreseeing. Moreover, the content should have a limit so as to protect the abuse of right, which can cause new monopolization and block the development of the economy. Second, use the use-law for the well-known trademark to get its trademark right that gives the same protection to the registered well-known trademark and un-registered that shows the legislative meaning of "well-known", no discrimination between the registered and un-registered. Third, make sure the legal responsibility of the trademark dilution Make the law-break cost higher. These are the guarantee of the effective protection of the well-known trademark right.