Recognition of well-known trademarks

(1) Principles for the recognition of well-known trademarks

Looking at various countries, there are two main models for the recognition of well-known trademarks: active recognition and Passive identification.

(1) Active determination means that in the absence of a rights dispute, the relevant departments, at the request of the trademark owner, determine whether the trademark is well-known in order to prevent possible infringement disputes in the future. Give the trademark expanded protection.

(2) Passive determination means that when a rights dispute has occurred, at the request of the trademark owner, the relevant departments will determine whether the trademark is well-known and whether it can provide an expanded scope of protection.

(2) Changes in the recognition principles of well-known trademarks in my country

In my country, the recognition of well-known trademarks can be divided into two stages.

1. Active identification and comprehensive protection

Before the revision of my country’s Trademark Law in 2001, my country adopted a basic model of active identification and comprehensive protection for the protection of well-known trademarks. Every year, the Trademark Office of the State Administration for Industry and Commerce conducts batch identification from a large number of existing trademarks from seven aspects according to the "Interim Provisions" published by the Office in 1996: (1) The sales volume of the goods using the trademark in China and Sales area; (2) The main economic indicators (annual output, sales, profits, market share, etc.) of the goods using the trademark in the past three years and their ranking in the same industry in China; (3) The sales volume of the goods using the trademark Sales volume and region in foreign countries or regions; (4) Advertising status of the trademark; (5) The earliest use of the trademark and the period of continuous use; (6) Registration status of the trademark in China and foreign countries or regions; ( 7) Other documents proving that the trademark is well-known. It is undeniable that the Trademark Office of the State Administration for Industry and Commerce has played a huge role in my country's well-known trademark protection practice with its "active identification and comprehensive protection" approach. However, this basic protection model has a series of problems.

First of all, this basic protection model violates the purpose of well-known trademark protection. The legal protection of well-known trademarks has been the product of the coordination of two different international trademark protection systems since its creation. That is, when the protection of trademark registration principles and usage principles is not balanced internationally, the Paris Convention gives tilted protection to trademark usage principles. The World Trade Organization's Trips Agreement extends the protection of well-known trademarks to the protection of use in non-similar goods. But no matter what, the protection afforded to well-known trademarks by the two international treaties is case-by-case determination and passive protection. That is, when an infringement dispute occurs and legitimate rights and interests are infringed, you can request the expanded protection obtained by identifying a well-known trademark. my country's well-known trademark protection model highlights the initiative of administrative agencies, taking the initiative to identify and comprehensively protect well-known trademarks. Therefore, it clearly violates the purpose of international protection of well-known trademarks.

Secondly, this basic protection model cannot solve the time and space problems existing in the recognition of well-known trademarks. Whether one is famous or not is an objective existence, and this objective existence will change over time. A certain trademark was not well-known when it first entered the market, but with the operation of marketization, it became a well-known trademark after a certain period of time. Similarly, a well-known trademark can no longer be well-known because the product fades out of the market and is forgotten by the relevant public. In both cases, if a rights dispute occurs, whether the trademark should be treated as a well-known trademark cannot be resolved by active determination.

Third, this basic protection model can easily cause well-known trademarks to be misinterpreted as a kind of honor. If a trademark is officially recognized as a well-known trademark, the market information to the public is that it is very famous and it indicates that the product or service is of good quality. In this way, the well-known trademark will be misinterpreted as an honor in the minds of the public. In order to cater to the public, companies may try their best to obtain this honor by any means. The direct consequence is that companies ignore the quality of products and services and blindly pursue recognition. Well-known trademarks are mixed with many subjective factors to a certain extent, resulting in well-known trademarks that are not consistent with their names and greatly damaging the interests of consumers.

2. Passive identification, individual case protection

At the end of 2001, China officially joined the World Trade Organization (WTO). On the one hand, the world of China has brought many opportunities and challenges to enterprises. On the other hand, it has also caused the government to accelerate the pace of reform in amending rules and regulations and standardizing administrative behavior.

Specific to the protection of well-known trademarks, the internationally accepted practice recognized by the World Trade Organization is that the identification of well-known trademarks is basically determined by the court based on specific circumstances. In addition, in practice, the protection of well-known trademarks in various countries also adopts a "passive recognition and case-by-case protection" model. Therefore, in order to fulfill its commitment to the world, the Chinese government must standardize its administrative behavior and adopt the new principle of "passive recognition and case-by-case protection" in the recognition and protection of well-known trademarks. my country officially implemented the newly revised Trademark Law on December 1, 2001. In 2003, the State Administration for Industry and Commerce issued the "Regulations" and abolished the "Interim Provisions". In this way, our country is currently at the same level as the international level in terms of protection of well-known trademarks.

Passive determination is when the people's court (or administrative agency) determines whether a trademark in an individual case is well-known when hearing cases and handling disputes. It uses Article 14 of the Trademark Law revised in 2001 as the determination standard, namely (1) the relevant public’s awareness of the trademark; (2) the duration of use of the trademark; (3) any publicity work for the trademark The duration, extent and geographical scope of the trademark; (4) the record of the trademark being protected as a well-known trademark; (5) other factors that make the trademark famous.

The advantages of implementing "passive identification and case-by-case protection":

(1) It complies with the purpose of international conventions to protect well-known trademarks.

(2) Operation in line with the laws of market economy.

(3) It is conducive to saving limited administrative resources and improving the efficiency of administrative agencies in related affairs.

(4) Effectively solve the time and space problems in the recognition of well-known trademarks. Active identification cannot solve the time and space problems of well-known trademarks, while passive identification requires a detailed analysis of the specific circumstances when a trademark dispute occurs. If the conditions for well-known trademark identification are met, the protection of the well-known trademark can be granted; if the conditions for well-known trademarks are not met, the protection of the well-known trademark cannot be granted. Trademark protection.