The Comparison Of Chinese And American Well-known Trademark Protection

The protection of well-known trademark is an important aspect of trademark law development. The United States, which has an early and a thoroughly development in protecting famous trademarks, is leading the world on this specific legal field. The trademark-dilution theory, which was developed in the US, has been adopted by a lot of countries and world organizations as well. China, on the contrary, was very late in dealing with the trademark protection issues. As the result, the country has encountered some difficult problems in both legislation and legal practices.In the first place, this article examines the legal bases and the basic trademark protection models in both China and the US. Obviously, the US trademark dilution theory has more advantages worldwide. Comparing to China's trademark-confusion theory, when there is no likelihood of confusion, the dilution theory can effectively solve the problem of the distinctiveness injury done by other marks to the famous marks.That to determine whether a mark is famous is an extremely crucial step in well-known marks protection. China's trademark law lists five factors in determining it, while the US law lists 8 factors. This article makes some comparative analysis on some important issues that are related to those factors. The issues include distinctiveness, famous mark's degree of recognition by public, the duration of mark's use and advertising, the mark's records of being protected as a famous mark, the effects of territoriality on the famous mark's identification, the mark's registration information, etc. Through the research on the flaws in China's legislation on famous trademark protection, and on the problems in China's legal practices on factors such as public, and the durations of mark's use, this article is trying to find out some elements of the US legal practices that can be borrowed by China in its trademark protection.The identification of trademark infringement (It is called dilution identification in the US.) is another important issue in well-known marks protection. This article compares China's legal practices with the famous Nabisco standards in the US. It is obvious that the US standards are more systematic and complete than the Chinese standards that are relatively weak. It will be good to China to learn some experiences from the US in its dilution identifications. In the conclusion, the author believes that the problems of China's trademark protection are deeply rooted in its legal bases that are stilling focusing on the confusion theory. An introduction of the dilution theory, which was adopted by many countries and world organizations as well, into China's legal system will unquestionably help China build up a much strong legal basis, and to a large extent, improve China's law in trademark protection.In general, the purpose of this article is to provide some useful suggestions to help China improve its legislation and legal practices in trademark protection. The author achieves the goal by examining the cases in both China and the US, and by summarizing China's experiences for the past two decades, plus the theories and the legal practices of the developed countries in this specific legal field.