[Abstract]: As an important intellectual property system, the legal protection system for well-known trademarks has gone through a stage of development, maturity, and perfection. The author tries to put forward some simple opinions on the definition of the connotation of well-known trademarks, the standards for identifying well-known trademarks, and some new issues that have arisen in the legal protection of well-known trademarks in today's increasingly developed knowledge economy.

[Keywords]: Well-known trademarks, well-known trademark dilution, no-fault liability

Introduction

my country’s well-known trademarks have a long history of special legal protection. my country has begun legal protection of well-known trademarks since it joined the Paris Convention in 1984. The national trade department directly protects some foreign well-known trademarks based on the relevant provisions of the Paris Convention. Protection at this stage also mainly is simply to protect against confusion. With the increasing depth and breadth of reform and opening up, the issue of preventing well-known trademarks of our companies from being maliciously registered abroad and protecting the legitimate rights and interests of trademarks has also been put on the agenda. In 1987, in the case of Beijing Medicinal Materials Company suing a Japanese manufacturer for maliciously registering "Tongrentang", the State Trademark Office officially recognized my country's first well-known trademark "Tongrentang". In the following years, the State Administration for Industry and Commerce, with the support of Legal Daily, CCTV and other public opinion media, announced China's top ten well-known trademarks in September 1991: Maotai, Phoenix, Dumping, Polaris, Wuliangye, Luzhou, etc. Afterwards, the National Trademark Administration and Trademark Office recognized another 9 and 23 domestic well-known trademarks in two batches, further expanding the scope of protection of my country's well-known trademarks. In 1993, my country revised the Trademark Law, and in July of the same year revised the Implementing Rules of the Trademark Law, which formally stipulated the protection of well-known trademarks, but only stopped the behavior of preemptively registering well-known trademarks in violation of the principle of good faith, and did not The problem of well-known trademark squatting without malicious intent. In 1996, this year was the most important year for the legal protection of well-known trademarks in my country. my country's first administrative regulation specifically adjusting the identification and management of well-known trademarks, the "Interim Provisions on the Identification and Protection of Well-known Trademarks" was promulgated, which defined the well-known trademarks. meaning, and the protection of well-known trademarks has been extended to non-similar products and services for the first time. This provision embodies a relatively strong idea of ??"administrative identification as the mainstay, case identification as a supplement" and has played a positive role in the protection of well-known trademarks in my country for a long time. However, this interim provision is only based on China's national conditions. Many of the regulations, especially the recognition and standards of well-known trademarks, are contrary to international practice. This shortcoming has become even more evident after my country joined the WTO. Therefore, on April 17, 2003, the State Administration for Industry and Commerce officially promulgated the "Regulations on the Recognition and Protection of Well-known Trademarks", which was a major revision of the interim provisions. It improved the relevant content of the interim provisions and made the protection of well-known trademarks The system has become more complete. Since then, a special legal protection system for well-known trademarks in my country has been relatively well established.

This article attempts to discuss the legal protection of well-known trademarks from the following three aspects: 1. The concept and identification of well-known trademarks; 2. The legal protection system for well-known trademarks in my country; 3. The improvement of the legal protection system for well-known trademarks . The structure is relatively simple, but the content is quite a lot. It also touches on some issues that are quite controversial in the academic world, such as: the anti-dilution of well-known trademarks, the restrictions on the subjects of well-known trademark rights, and other issues. Of course, limited by my academic ability and incomplete information, this article ignores a very important issue: the legal protection of well-known trademarks and domain name issues. This is a quite cutting-edge issue, which involves the difference between well-known trademarks and domain names and how to protect well-known trademarks in the online environment.

The concept and recognition of a well-known trademark

(1) The concept of well-known trademark "FAMOUS TRADE MARK" is also known as a well-known trademark. It first appeared in the "Protection Agreement" signed in 1883. Article 6bis of the Paris Convention on Industrial Property (hereinafter referred to as the "Paris Convention"): "If the registration authority of the country where the trademark is registered or the country of use considers that a trademark has become a well-known trademark in that country, another trademark constitutes this When the copying, counterfeiting or translation of a well-known trademark is used on the same or similar goods and is likely to cause confusion, a member state shall, ex officio or at the request of the relevant party, refuse or cancel the registration of another trademark and prohibit its use.

Requests for cancellation of such a mark shall be allowed for a period of at least five years from the date of registration. The period within which a prohibition of use may be proposed may be stipulated by each Member State of the Union. There should be no time limit for requests to cancel registration or prohibit use of a trademark that has been registered or used dishonestly. This provision of the Convention has gradually been recognized worldwide and has become one of the basic legal basis for member states to protect well-known trademarks. my country joined the Convention in 1984 and became its 95th member state. Like other member states that have joined the Paris Convention, special legal protection for well-known trademarks in accordance with the provisions of the Convention has become an important part of China's trademark legal work.

With the opening up of my country's economic prosperity and the rapid development of the economy, some foreign trademarks, especially the top ten influential well-known trademarks in the world such as: Coca-Cola, Sony, Mercedes-Benz, Kodak, Disney, Nestlé , Toyota, etc. are all well-known to the Chinese people with the sales of their products in China. Well-known trademarks (FAMOUS TRADE MARK) stipulated in Chinese law refer to trademarks that are widely known to the relevant public in China and enjoy a high reputation. Among them, "relevant public" includes "consumers related to a certain type of goods or services marked by the use of trademarks, other operators who produce the aforementioned goods or provide services, as well as sellers and related personnel involved in distribution channels." This concept. It has the following two meanings:

Firstly, a well-known trademark is a well-known trademark, that is, it has a high or high reputation. This is mainly proved through some supporting materials, such as public awareness, the scope and intensity of advertising, the time of trademark use, etc. The Paris Convention for the Protection of Industrial Property stipulates that member states shall undertake the obligation to extend protection for well-known trademarks. Secondly, well-known in a well-known trademark does not mean that it is recognized by everyone or has a high reputation among all the public, but that it is well-known among the relevant public.

(2) Recognition of well-known trademarks

The recognition of well-known trademarks is closely related to special protection, and recognition is the prerequisite for the implementation of protection. If there are too many identification entities, the scope of identification is too extensive, and the identification method is too proactive, well-known trademarks will be everywhere, which will be detrimental to the protection of well-known brands with truly high goodwill and strong strength. The following is a discussion on the specific identification entities, standards and methods of well-known trademarks:

1. Restrictions on identification entities

The "Well-known Trademark Identification" promulgated by the my country Administration for Industry and Commerce Article 5 of the "Provisions on Trademark and Protection" stipulates that the recognition agency for well-known trademarks is the State Administration for Industry and Commerce. The Trademark Law stipulates that the Trademark Office and the Trademark Review and Adjudication Board may determine whether the trademark constitutes a well-known trademark based on ascertaining the facts at the request of the party concerned. The trademark authority exercises the power of trademark registration and trademark management in accordance with the law, controls the registration and use of trademarks by industrial and commercial enterprises, and is familiar with trademark laws. The trademark authority identifies well-known trademarks, which is authoritative and impartial. According to common international practice, the court can identify well-known trademarks in individual cases. In recent years, my country's intellectual property law theoretical circles and practical departments have gradually reached a consensus on the people's court's right to identify well-known trademarks in individual cases. On July 17, 2001, Article 6 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names" promulgated by the Supreme Court stipulates that when hearing cases of domain name disputes, the People's Court shall, based on the request of the parties and the specific circumstances of the case, Whether the registered trademark involved is well-known can be determined in accordance with the law. On October 16, 2002, the Supreme Court promulgated the Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademark Rights, which clearly stipulates that when hearing trademark dispute cases, the People's Court may determine whether the trademark involved is well-known in accordance with the law. Therefore, the competent authorities in my country to identify well-known trademarks should be the trademark administrative authorities and the people's courts. No other organization may identify or adopt other disguised methods to identify well-known trademarks. In particular, trademark owners cannot arbitrarily label their trademarks as well-known trademarks; when advertising operators and publicity media promote a certain product, if the trademark owner fails to provide certification materials from relevant departments, they cannot label the promoted trademarks as well-known. title.

2. Restrictions on identification standards

Article 14 of the Trademark Law stipulates the factors that should be considered in identifying well-known trademarks, namely: (1) The relevant public’s interest in the trademark The degree of awareness; (2) the duration of use of the trademark; (3) the duration, extent and geographical scope of any promotional efforts for the trademark; (4) the record of the trademark being protected as a well-known trademark; (5) the trademark’s well-known of other factors. The recognition of well-known trademarks by the people's courts and the trademark authorities shall be carried out in strict accordance with the above standards and in accordance with the law. Those trademarks that have a short duration of publicity and use and a low degree of awareness among the relevant public cannot be recognized as well-known trademarks.

3. Restrictions on identification methods

There are two basic modes of identification of well-known trademarks: active identification and passive identification.

(1) The passive determination method, also known as ex post facto determination, is when the trademark owner claims rights, that is, when there is an actual rights dispute, the relevant department shall, at the request of the trademark owner, Determine whether the trademark is well-known and whether it can be granted expanded protection. Passive recognition is the basic model for judicial authorities to identify well-known trademarks. It is currently adopted by most Western countries and is regarded as international practice. Although the protection provided by passive recognition for well-known trademarks is passive, this recognition is for the purpose of achieving cross-class protection and canceling squatting registrations, and it is highly targeted. Therefore, the legal relief obtained is real, and this legal relief resolves the rights dispute that has actually occurred. Passive determination can also be used by administrative agencies.

(2) The proactive determination method, also known as prior determination, is when there is no actual rights dispute. For the purpose of preventing possible rights disputes in the future, the relevant departments respond to the request of the trademark owner for the purpose of preventing possible rights disputes in the future. , determine whether the trademark is well-known. Active recognition focuses on preventing possible disputes and is a way for administrative agencies to recognize well-known trademarks. The active determination method is not suitable for judicial authorities. Of course, proactive recognition can provide prior protection and enable trademark owners to avoid unnecessary disputes. However, the proactive determination is inconsistent with international practice. Especially if the batch identification method is used, if it is not grasped accurately, it will inevitably lead to abuse of evaluation, and it can also easily lead to comparisons between companies and regions.

(3) The determination and reasons for the identification of well-known trademarks in my country

Article 4 of my country's "Regulations on the Identification and Protection of Well-known Trademarks": "The parties believe that the trademarks of others have been preliminarily reviewed and announced. Anyone who violates Article 13 of the Trademark Law may file an objection with the Trademark Office in accordance with the provisions of the Trademark Law and its Implementing Regulations, and submit relevant materials proving that the trademark is well-known. The party concerned believes that a trademark that has been registered by others violates Article 13 of the Trademark Law. According to the provisions of the Trademark Law and its Implementing Regulations, you can apply to the Trademark Review and Adjudication Board for a ruling to cancel the registered trademark, and submit relevant materials proving that the trademark is well-known.” From this provision, it can be seen that the State Trademark Office’s review of well-known trademarks. The determination adopts the method of "case-by-case handling, passive determination", that is, only when the trademark registrant believes that its well-known trademark has been damaged and requests the protection of its legitimate rights and interests, can it apply to the State Administration for Industry and Commerce for recognition of a well-known trademark. This provision changes the model of "active identification as the mainstay and passive identification as the supplement" determined in the "Interim Provisions". For trademark registrants who request recognition of a well-known trademark, if there is no precise reason for legal appeal, the trademark will generally not be recognized as a well-known trademark. This is consistent with international practice. The contracting parties to the Paris Convention generally use this recognition model to identify well-known trademarks. To sum up, there are mainly three reasons:

(1) This model is in line with 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 birth. That is: when the international protection of trademark registration principles and usage principles is unbalanced, the Paris Convention gives tilted protection to trademark usage principles. That is to say, the protection of unregistered well-known trademarks is included in the protection of international conventions. The Trips Agreement of the World Trade Organization extends the protection of well-known trademarks to the protection of use in non-similar goods. But in general, the well-known trademark protection provided by the two international treaties is case-by-case protection and passive protection. That is: when an infringement dispute occurs and legitimate rights and interests are infringed, request the specific protection obtained by identifying a well-known trademark. This also reflects the purpose of well-known trademark protection: case-by-case protection and passive protection.

(2) The need to fulfill the WTO commitments.

In order to be consistent with international laws and regulations, our country must modify or even abolish the original administrative regulations and administrative rules that are incompatible with international rules and practices. The promulgation of the "Regulations" is a reflection of this; in the protection of well-known trademarks, it is also increasingly More and more consideration is given to the rational approach of making judgments based on specific circumstances in reality. At the same time, the adoption of passive identification also confirms and embodies the principle of "passive protection and case-by-case handling" of well-known trademarks stipulated in the new Trademark Law and its implementation regulations.

(3) Since our country is a developing country, the market economy is not yet developed, and the awareness of well-known trademarks is not strong. If the advantages of flexibility, initiative and efficiency of administrative recognition are not fully utilized to determine well-known trademarks, Trademarks, promote the extensive development of well-known trademark protection work, then it will be difficult for many well-known brands of our country's enterprises to enjoy the special protection of well-known trademarks in domestic and foreign markets, and cannot be in an equal competitive position with international brands in market competition. This It is unfair to most well-known brands in my country...

4 Time and space gradient issues in the recognition and protection of well-known trademarks

Well-known trademarks enjoy a high reputation in the market and It is well known to the relevant public. As an objective existence, according to its growth law, it can be inferred that there must be an obvious longitude and latitude problem in its formation process, namely: time gradient and spatial gradient. In the process of well-known recognition and protection, there will inevitably be inconsistencies in time and space. The following is a trial explanation of these two aspects:

(1) The time gradient in the identification and protection of well-known trademarks

The reason why well-known trademarks are counterfeited and infringed on a large scale in real life is nothing more than It is based on the fact that it can bring a lot of considerable profits to the enterprise, and all of this is based on the high value-added goodwill behind the well-known trademark. The formation of goodwill is also formed by the accumulation of honest labor of the enterprise over a long period of time. It can be seen that it takes more than ten years or even decades of efforts for an enterprise to create a brand, especially a famous brand, or even the efforts of several generations. Therefore, under normal circumstances, in trademark infringement disputes, especially counterfeiting disputes, one party must be the owner of a well-known trademark, rather than an ordinary trademark with no reputation.

As mentioned above, the recognition of a well-known trademark is inseparable from the basic fact that the trademark is well-known, and a trademark goes from ordinary to well-known, no matter how fast (there are many companies in real life, through advertising, promotion It will take some time, but it may be longer or shorter. Fundamentally speaking, there is a time gradient problem in the identification of well-known trademarks. For example: (1) A certain trademark was not well-known at first, but it has become a well-known trademark at the time of infringement. If it is too late to be proactively recognized by the administrative agency, how should it be protected when infringement occurs? Granting only general trademark protection is obviously inconsistent with the factual status at the time of the dispute: the trademark has become a well-known trademark. If well-known trademark protection is granted, it is obviously inconsistent with the procedures, that is, well-known trademark protection must be proactively recognized by administrative agencies. (2) As a well-known trademark, when an infringement dispute occurs, due to a large number of weakening and dilution, it becomes an ordinary trademark. When a dispute occurs, how should the legitimate rights and interests of its owner be protected? Similarly, if only Granting protection to a well-known trademark is obviously inconsistent with the objective facts: when an infringement dispute occurs, the trademark has been reduced to an ordinary trademark. At the same time, it is unfair to other competitors. If only general trademark protection is granted, it is obviously inconsistent with the legal status of the trademark being a well-known trademark. Wait, these issues are undoubtedly difficult to operate and a dilemma for administrative agencies that only provide proactive identification in advance.

Obviously, the rigid administrative agencies proactively determined that the operation was inconsistent with the laws of the market economy. Because whether a trademark can become a well-known trademark in the market depends solely on the mandatory determination by administrative agencies, it is simply not feasible. Its successful operation is a reflection of the comprehensive strength of the enterprise and the best manifestation of the role of the laws of market economy. The new principle of well-known trademark identification of "passive protection and case-by-case identification" can effectively avoid the above problems due to its flexibility. Solve the time gradient problem in the recognition of well-known trademarks, that is, when a trademark dispute occurs, the people's court shall conduct case-by-case determination in accordance with the provisions of Article 14 of the Trademark Law. At the same time, this principle is in line with the laws of market economy and can more accurately reflect the status of the trademark when the dispute occurs.

(2) The problem of spatial gradient in the recognition and protection of well-known trademarks

Just as there is a temporal gradient in the recognition and protection of well-known trademarks, there is another problem in the recognition and protection of well-known trademarks. An extremely important question. Namely: the spatial gradient problem. As mentioned above, trademark well-known is an objective existence. As an objective existence, there must be two important dimensions: time and space in real life. Obviously, the recognition and protection of well-known trademarks also has spatial gradient issues. That is: for a trademark to become a well-known trademark, it cannot be well-known in all parts of the world or all regions of a country at the same time and be well-known to the relevant public. For example: "Coca-Cola" is a world-famous brand, but for people in economically backward areas, it has obviously never been heard of. There is also information that spreads the fastest, which also has the problem of information asymmetry in the world.

The spatial gradient problem in the recognition and protection of well-known trademarks is reflected in the fact that it is impossible for a well-known trademark to be well-known in all regions at the same time. For example: a well-known trademark is well-known in large and medium-sized cities, but may not be well-known in small cities and rural areas. Even in the same region, this type of problem still exists due to the different positioning targets of well-known trademarks. Therefore, when a trademark dispute occurs, a detailed analysis of the specific situation is required, and legal protection for well-known trademarks cannot be provided in general. Therefore, in the face of such problems, it is also necessary to adopt the well-known trademark protection principle of "passive protection and case-by-case identification", and the people's court will conduct case-by-case identification and protection based on the specific circumstances at the time.

Second well-known trademark legal protection system

(1) Protection of well-known trademarks by relevant international treaties

Since the first introduction of well-known trademarks in the 1883 Paris Convention After the concept of well-known trademarks, special protection for well-known trademarks has become a legislative trend around the world. Many international treaties provide legal protection for well-known trademarks, and this protection is provided in the form of special legal provisions for well-known trademarks. Now this protection is becoming increasingly strict.

The Paris Convention is the earliest international convention to provide for the protection of well-known trademarks. Article 6bis of the Convention is the classic provision for the protection of well-known trademarks. This article stipulates: The countries of the Union undertake, if their national laws permit, to ex officio or at the request of the parties concerned, any trademark that the competent authority of the country of registration or use considers to be owned by a person entitled to enjoy the benefits of this Convention in that country. If a trademark that is well-known and used for identical or similar goods constitutes a copy, imitation or translation, and is likely to cause confusion, registration shall be refused or revoked and use shall be prohibited. These provisions shall also apply when the main part of the trademark constitutes a copy or imitation of a well-known trademark and is likely to cause confusion. The Paris Convention adopts relative protectionism for the protection of well-known trademarks, that is, it prohibits others from registering and using trademarks that are identical or similar to the well-known trademark in the same or similar industries as the trademark owner. As for non-similar goods, The use of identical or similar trademarks is permitted.

In order to effectively prevent the reputation, identification and distinctive features of well-known trademarks from being damaged by improper use, many countries have implemented absolute protectionism for well-known trademarks, prohibiting others from using them in any industry, including goods that are different from well-known trademarks. If you register and use a trademark that is identical or similar to a well-known trademark in or dissimilar industries, the owner of the well-known trademark also has the right to prohibit the use of non-trademark commercial signs. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has established higher protection standards than the Paris Convention and implemented cross-class protection for well-known trademarks. Article 16, paragraph 3, of the Agreement stipulates: The 1967 text of the Paris Convention shall, in principle, apply to goods or services that are not similar to the goods or services indicated by a well-known trademark, as long as the use of the trademark on dissimilar goods or services will cause harm It implies that the goods or services have some connection with the owner of the well-known trademark, which may damage the interests of the owner of the well-known trademark.

(2) Protection of well-known trademarks by my country’s current legislation

In the Trademark Law before the revision, my country basically did not provide for well-known trademarks. In judicial practice, when encountering well-known trademarks, The protection of trademarks has to be based on the relevant international conventions that our country has committed to join. At this time, the protection of well-known trademarks under our country's laws is seriously out of touch with the protection of well-known trademarks in the world. Providing a high level of protection for well-known trademarks is the essence of well-known trademark protection. After my country joined the Paris Convention, both legislation and law enforcement reflected a common theme, which is to provide well-known trademarks with higher protection than ordinary trademarks.

On October 27, 2001, my country revised the Trademark Law for the second time. Combining the requirements of the TRIPS Agreement and my country's practice of protecting well-known trademarks, two situations were stipulated based on whether the well-known trademark was registered in China. The first is the situation stipulated in Article 13, Paragraph 1 of the Law, that is, “If a trademark applied for registration for the same or similar goods is a copy, imitation or translation of someone else’s well-known trademark that has not been registered in China and is likely to cause confusion, it shall not be registered and its use shall be prohibited. "; The second is the situation stipulated in Article 13, Paragraph 2 of the Law, that is, "the trademark applied for registration for different or dissimilar goods is a copy, imitation or translation of a well-known trademark that has been registered in China by others, misleading the public, and causing the If the interests of the registrant of a well-known trademark may be harmed, the trademark shall not be registered and its use shall be prohibited.” It can be seen that my country’s trademark law’s protection of well-known trademarks has two special features compared with the protection of ordinary trademarks: First, the scope of protection includes not only well-known trademarks registered in China, but also well-known trademarks not registered in China. Second, the right of prohibition by the owner of a registered well-known trademark is not limited to similar uses on similar goods, but extends to the use of non-similar goods.

(1) Protection of well-known trademarks that have not been registered in China

my country has always pursued a registration acquisition system in the way of obtaining trademark rights. Registration is the basis for obtaining trademark rights. Unregistered Trademarks generally do not receive legal protection. When an unregistered trademark conflicts with a registered trademark, the registered trademark takes precedence. According to the first-to-register principle, if the first person to use a trademark does not apply for registration in time, he will not be able to obtain trademark rights for the trademark if someone else applies for registration first. Based on the principle of independent trademark rights, trademarks registered in other countries and unregistered in China are not protected. This "no registration, no protection" principle may lead to very unfair results for the owners of well-known trademarks. Although some well-known trademarks are not registered in China, their real owners have used them for a long time and made efforts to cultivate the reputation of the trademark. As an operator, when a well-known trademark is preemptively registered or used by others, it will inevitably cause damage to the legitimate rights and interests of the well-known trademark and its owner. Therefore, it is necessary to make exceptions to the principle of acquisition of registration, that is, trademark rights can be acquired due to well-known reputation. The specific content is the provisions of Article 13, paragraph 1, of the Trademark Law. According to this regulation, if a well-known trademark is not registered in China, its scope of rights is limited to identical or similar goods. This provision does not violate the basic requirements of the Paris Convention and the TRIPS Agreement, and is also in line with the actual situation in the field of trademark protection in my country. In fact, when my country's trademark protection implements the registration principle, unregistered well-known trademarks are protected, which itself reflects the special protection of well-known trademarks. This provision absorbs the reasonable elements of the principle of obtaining trademark rights to a certain extent, and grants trademark rights to unregistered well-known trademark owners, which is conducive to achieving substantial fairness in the field of trademark law and conforms to the trend of international trademark protection.

Specifically, according to the Trademark Law, the Implementing Regulations of the Trademark Law and the judicial interpretation of the Supreme Court, owners of well-known trademarks that have not been registered in China (hereinafter referred to as "owners of unregistered well-known trademarks") enjoy the following rights : (1) If others violate the provisions of Article 13, Paragraph 1 of the Trademark Law, during the trademark registration process, the owner of an unregistered well-known trademark may request the Trademark Office to reject the registration application of others. (2) If another person violates the provisions of Article 13, Paragraph 1 of the Trademark Law, during the trademark review process, the owner of an unregistered well-known trademark may request the Trademark Review and Adjudication Board to cancel the registered trademark of another person, and the period for exercising his rights is the expiration of the trademark registration period. Within five years from the date of registration; if the trademark is registered in bad faith by others, the owner of the well-known trademark is not subject to the five-year time limit. (3) If another person violates Article 13, paragraph 1, of the Trademark Law, the owner of an unregistered well-known trademark has the right to request the People's Court to order the perpetrator to bear civil liability to cease the infringement. (4) If others use a trademark that is identical or similar to an unregistered well-known trademark on the same or similar goods, which is likely to cause confusion, the owner of the unregistered well-known trademark may request the industrial and commercial administration department to ban the use. (5) If someone believes that someone else's registration of an unregistered well-known trademark as a business name may deceive the public or cause misunderstanding to the public, someone with an unregistered well-known trademark may apply to the competent authority for business name registration to cancel the registration of the business name.

It can be seen that when an unregistered well-known trademark conflicts with an ordinary registered trademark, the law gives priority to the protection of unregistered well-known trademarks. However, my country's protection of unregistered well-known trademarks has not reached the level of protection for ordinary registered trademarks in many aspects, and is even less comparable to the protection of registered well-known trademarks.

First of all, my country's trademark laws, regulations and judicial interpretations do not clearly define violations of Article 13, paragraph 1, of the Trademark Law as infringement. Chapter 7 of the Trademark Law only stipulates the protection of the exclusive right to use a registered trademark. For "behavior causing other damage to the exclusive right to use a registered trademark" as stipulated in Article 52(5) of the Trademark Law, the Implementation Regulations of the Trademark Law and The situations listed in the Supreme Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" (hereinafter "Several Interpretations") do not include violations of Article 13, paragraph 1, of the Trademark Law. Secondly, according to the provisions of Article 2 of the "Several Interpretations", if the perpetrator commits an act that violates Article 13, Paragraph 1 of the Trademark Law, the perpetrator shall only bear civil legal liability to stop the infringement, and there is no issue of applying other civil liabilities. Unregistered The owner of a well-known trademark has no right to require the infringer to bear civil responsibilities such as removing obstructions, eliminating dangers, compensating losses, and eliminating impacts; the law does not provide that the people's court can impose civil sanctions such as fines on the perpetrators and confiscation of infringing goods in such cases. Decide. Third, in terms of administrative handling, for violations of Article 13 of the Trademark Law, the "Implementing Regulations" stipulate that the industrial and commercial departments can confiscate and destroy trademark logos. If the trademark logo is difficult to separate from the goods, they will be confiscated and destroyed together. This provision may apply to situations in which Article 13, paragraph 1, of the Trademark Law is violated. However, for violations of this paragraph, the law does not provide that the industrial and commercial administration department can impose other administrative penalties, including fines, on the perpetrators. Fourth, the law does not provide that the owner of an unregistered well-known trademark has the right to apply to the court to take measures to order the cessation of relevant activities and property preservation before litigation, and to apply for pre-litigation preservation of evidence. Fifth, cross-class protection is not implemented for unregistered well-known trademarks. If others copy, imitate, or translate an unregistered well-known trademark and use it as a trademark on different or dissimilar goods, the owner of the unregistered well-known trademark has no right to prohibit others from registering and using it. It can be seen that my country has adopted a cautious attitude towards the special protection of unregistered well-known trademarks. The reason for this situation is probably to maintain the principle of obtaining trademark rights through registration, so as to urge the owners of well-known trademarks to register their trademarks in China. Despite this, the provisions of the Trademark Law and related laws are still lacking in the protection of unregistered well-known trademarks. While the Trademark Law clarifies the "exclusive right" of the owner of an unregistered well-known trademark, for violations of Article 13, paragraph 1, of the Trademark Law, except that the "Several Interpretations" stipulate that the perpetrator shall bear civil liability to stop the infringement, other laws, The regulations do not provide for the identification of infringement of unregistered well-known trademarks and the corresponding judicial remedies. There is a situation where there are rights but insufficient remedies, which is very detrimental to the protection of unregistered well-known trademarks. In fact, most of the well-known trademarks that have not been registered in my country are foreign well-known trademarks, and most of the well-known trademarks owned by Chinese companies are registered trademarks. The trademark owner has to pay such a heavy price just because the well-known trademark has not been registered in China. In terms of judicial and administrative relief, it does not even reach the level of protection for ordinary registered trademarks. It is obviously not in line with the spirit of special protection for well-known trademarks. Therefore, in future legislation, it is necessary to make more complete and clear provisions on administrative remedies and judicial remedies for the exclusive rights to unregistered well-known trademarks, so as to truly achieve special protection for unregistered well-known trademarks.

(2) Protection of well-known trademarks registered in China

Traditional trademark protection is mainly designed for the distinguishing function of trademarks. Its theoretical basis is the confusion theory. Under the confusion theory , based on whether consumers can correctly associate the goods or services with the provider without confusion, until the "possibility of confusion" is regarded as the core of trademark protection. However, with the development of social economy and the continuous improvement of commercialization, the huge commercial value contained in well-known trademarks has attracted increasing attention. Well-known trademark rights holders use their excellent goodwill to guide purchasing power, rather than just using trademarks to distinguish different products and producers. Obviously, the confusion theory cannot solve the problem of protection of well-known trademarks. Therefore, the dilution theory was developed based on the confusion theory. The so-called trademark dilution, commonly known as "free riding" or "riding on a free ride", refers to the use of a trademark that is the same or similar to a well-known trademark by an unauthorized user on goods of a different type than the well-known trademark, causing consumers to have doubts about the source of the goods. Behaviors that cause misunderstanding or confusion about the relationship with the manufacturer in other aspects, thereby weakening the special attraction, identification and advertising effect of the well-known trademark, and damaging or tarnishing the goodwill of the well-known trademark.

The anti-dilution theory breaks through the traditional principle of trademark protection based on the existence of confusion. It does not consider whether there is a competitive relationship between the owner of a well-known trademark and the person who dilutes it, or the possibility of consumer confusion or misunderstanding. Instead, it focuses on at