| Trademark dilution refers to the use of trademarks that are the same as or similar to famous trademarks on products that are not identical or similar without the permission of the right holder,thereby weakening the distinctiveness and recognizability of the trademark.With the vigorous promotion of intellectual property strategies in various countries and the gradual awakening of trademark holders’ awareness of rights protection,the number of countries that use the dilution theory as a guiding principle to apply anti-dilution protection to famous trademarks is also increasing.Anti-dilution protection is a special protection system based on curbing the occurrence of free-rider unfair competition and providing extended protection to famous trademarks.Its main purpose is to protect the distinctiveness and recognition of famous trademarks from being damaged while maintaining market competition.Order and protect the legitimate rights and interests of consumers.China has made a series of regulations on anti-dilution protection of famous trademarks in relevant legislation,and is implementing them in judicial practice.In fact,if the blind use of trademarks that are similar to famous trademarks without the permission of the right holder is deemed to be dilute,the right holder will be given too much discretion.Once the right holder uses the right beyond the scope of the law,It is very likely that trademark owners will abuse their rights to seek unjustified interests,infringe on the legal rights and public interests of others,and undermine fair competition in the market.Therefore,it is recommended to take practical supporting measures from the legislative,judicial and government levels.In terms of legislation,there are four key points for considering the unclear legislation: First,for the issue of unclear trademark distinctiveness judgment standards,it is recommended to use inherent distinctiveness or acquired distinctiveness as the criterion for judging the distinctiveness of famous trademarks.Secondly,for the issue of the protection scope of unclear visibility,it is recommended to make a division based on industry and region,and to clarify the industry scope and geographic scope of the popularity in light of China’s legislation.Thirdly,for the issue of unclear famous trademark dilution,it is recommended to combine the definition of dilution,the type of dilution and the subjective fault of the actor to clarify the composition of dilution.Fourth,for the unclear theoretical basis of trademark anti-dilution protection,the advanced dilution theory can be used as the guiding principle of anti-dilution protection,and the interests of trademark owners can be effectively protected.Judgment is difficult in the judiciary.First,the principle of recognition of famous trademarks has not been optimized.It is recommended to choose the case determination principle,passive determination principle or on-demand determination principle to hear cases according to the needs of the case,so as to provide more stable protection for anti-dilution.Second,there are loopholes in the famous trademark identification procedure.It is possible to make expanded provisions on the determination procedure,and to reduce false litigation and malicious litigation through rigorous review of the parties’ identity and case reasons.Third,responsibility for the dilution of famous trademarks has not been detailed.The legal responsibility of the perpetrator should be clarified in conjunction with the General Provisions of Civil Law,the Criminal Law and the Trademark Law.Fourth,the judicial policy and the adjudication rules are inconsistent with the standard of anti-dilution determination.It is recommended to adopt the principle of actual dilution of standards to effectively avoid abuse of rights and unfair competition.In addition,the government should strengthen the construction and management of anti-dilution protection restrictions from prohibiting the use of "famous trademarks" for advertising,prohibiting the use of the number of famous trademarks as a factor in government performance,and appropriately restricting the arbitrary transfer and licensing of famous trademarks. |
