China’s Overseas Well-known Trademark Recognition And Protection-Comparison Of China And Japan’s Legislation And Judicial Practice

The subject of this study is China’s overseas well-known trademark recognition and protection. In this paper we examine how to improve the Chinese trademark legal system in order to mend the problem of malicious registering action for overseas well-known trademark radically.As globalization of the world economic, internationalization of corporate activities and accelerate of information communication, the dis semination of goodwill became borderless and no inevitable causal connection with use of the trademark. China adopt the first-registration-system for trademark right and insist the territorial principle as well. Therefore, there is no regulation for protection of unregistered overseas well-known trade mark which is ignore the reality of big amounts of malicious registering action of overseas well-known trademark. Now the territorial principle is facing big challenge from the changes of the way of world trade.This paper will point out the lack of the current Chinese Trade Mark Law in the aspect of protection of unregistered overseas well-known trademark, based on reviewing the law origin and Japanese history of overseas well-known trademark protection, and compare the legal system and judicial practice regarding this issue of China and Japan and then give an improvement methodologyIn the 1980 s, Japan was perplexed by malicious registering action as China’s problem today. The trade friction which created negatively affect to economic caused by malicious registering action raised a concern of the government. In 1996, the Japanese government decided to violate the territorial principle of trade mark give equal protection to overseas well-known trademark through legislative change to change the malicious registering situation radically. According to this study, the Japanese correlative regulation didn’t give overseas trade mark excessive protection instead supplemented the lack of the first-registration-system. As a result, the regulation depressed the malicious registering action, maintained the fair competition in the market and promoted economic development. The Japanese experience has reference value to improve the well –known trademark legal system in China.From the author’s perspective, China should to violate the territorial principle on well-known trade mark recognition suitably and give legal bases for oversea well-known mark protection base on the current condition of China. On the other hand, the trade mark office should consider tighter rules on screening system of trade mark registration cause a reduction lawsuit of trade mark right. Lastly, in order to provide stronger protection for Chinese well-known trade mark in other countries, remove barriers t o international development of Chinese company, the author suggest to create a mutually protection system between the countries and areas, to achieve the intended objective of Paris Convention and TRIPs Agreement.