Standards For Judicial Determination Of Trademark Dilution

The phenomenon of trademark dilution is a kind of universal infringement,the theory of anti-dilution is the key link of trademark relief.It originated in Germany,developed and perfected in America,and now has been accepted all over the world.Developed countries outside the region have summed up relatively mature standards for desalination identification through long-term theoretical analysis and judicial practice.However,there is no clear legislative regulation on the dilution phenomenon in China,and the cross-class protection system of well-known trademarks in China is based on the theory of "confusion".At present,the judicial practice of desalination cases is centered on the provisions of Article 13 of the Trademark Law and Article 10 of the Supreme People's Court's "Well-known Trademark Judicial Interpretation" to "weaken the trademark salience" and "derogate and improperly use the trademark market reputation".Due to the lack of a unified and scientific desalination of the identification standard,the various courts of desalination cases are often different,some courts can not clarify the difference between desalination and confusion,some courts try to put aside the confusion theory,using anti-unfair competition,trademark infringement and other ways to explain desalination.We can focus on the identification standards of trademark dilution cases,through the judicial practice of the judgment,from the two aspects of the dilution of the type of weakening and defilement of the typical case for statistical analysis,found that the Chinese courts for the theory of dilution of a high degree of acceptance.The basic procedure for the court to judge trademark dilution is that the cited trademark must be famous,and the cited trademark must be used as a trademark,so that the significance of the verified trademark is obviously weakened,and its behavior only needs to constitute "the possibility of dilution",regardless of the actual damage and the subjective intention of the infringer.The main dilemmas are as follows: 1.There are conflicts and gaps in the theory of desalination standard,and the theory of desalination overlaps with the theory of "confusion" in judicial practice,and the definition of the relevant public is unreasonable;Second,the boundary of desalination identification standard is not clear enough.In practice,it is difficult to grasp the relationship between the concepts of desalination and confusion,desalination and certain connection.Third,the actual adjudication process,judges still mainly rely on subjective judgment,resulting in the low identification accuracy of dilution standard,and the reasoning process is too careless.The perfection of the judicial recognition of trademark dilution lies in refining its standards and making room for interpretation on the basis of the existing laws.It is not enough to require a trademark to be famous mechanically.It must be proved that the trademark enjoys a high reputation in essence.Extend the use of trademark to be used in commercial activities.Third,desalination in the "similar" requirements are higher than "confusion",because desalination often occurs between different kinds of goods.Four,the "relevant public" should be divided into two definitions,that the famous when the relevant public should be the general public,that desalination occurs should be the relevant public defined as product consumers and industry people.Five,in the identification of whether there is a possibility of desalination,through market research and other ways to consumer association visualization.Finally,it should be combined with the responsible state of the infringer and the specific circumstances of the case.