(1) There is no unified international standard for the definition and identification of well-known trademarks
">The current definition of well-known trademarks mainly includes several tendencies: 1. A well-known trademark is a trademark that is known to the public within a certain geographical scope, such as in Taiwan; 2. A well-known trademark is a trademark that is known to the public and enjoys an excellent reputation, such as In France; 3. A well-known trademark refers to a registered trademark that has a high reputation in the market and is well-known to the relevant public, such as in China; 4. A well-known trademark is a trademark that has been well-known to the public after long-term use, such as in the United Kingdom. None of the above definitions can fully reflect the essential characteristics of well-known trademarks, and there is no unified international definition that can summarize their essence. There are also different opinions on whether to require well-known trademark recognition standards. Generally speaking, there are three types of standards adopted in the world: 1. General single standard, which uses public awareness as the only criterion for identifying well-known trademarks. The representative countries are Germany and France. In practice, social surveys are generally used to determine the "public awareness", that is, whether the trademark is well-known, based on the percentage of consumers within a specific transaction scope who know the trademark. 2. Enumerated multiple standards represented by the United States. That is, when determining whether a trademark is well-known, the listed factors must be combined. The specific standards have been mentioned previously and will not be repeated. 3. The general single standard represented by China is combined with the enumerated multi-sale standard. Article 2 of China's "Interim Provisions on the Recognition and Management of Well-known Trademarks" adopts a generalized single standard and stipulates "registered trademarks that enjoy a high reputation in the market and are well-known to the relevant public." Article 5 also stipulates seven factors using enumerated multiple standards: (1) The sales volume and sales area of the goods using the trademark in China; (2) The main economic indicators of the goods using the trademark in the past three years and their sales volume in China. Ranking in the same industry in China; (3) Sales volume and sales area of goods using the trademark in foreign countries (regions); (4) Advertising status of the trademark; (5) The earliest use and continuous use time of the trademark; (6) The registration status of the trademark in China and its foreign countries (regions); (7) Other documents proving that the trademark is well-known. The diversity of recognition standards has resulted in the lack of a unified basis for the international protection of well-known trademarks, which is just a matter of paper and cannot get the protection it deserves in all countries. Therefore, the process of unifying the definition and recognition standards of well-known trademarks should be accelerated.
(2) There are disputes over the well-known trademark identification method and the ownership of identification rights
Identification method and identification Ownership of rights is a key issue in the well-known trademark approval system, and it is also an issue that must be clarified for well-known trademarks to obtain international protection.. During the research process, there are two views generally advocated by countries around the world: 1. Ex post facto determination by the court, with France as a typical example. That is, when an infringement dispute occurs, the court will determine the well-known trademark through trial. Such an approach would be akin to "repairing the situation before it is too late". Imagine that the trademark is in an uncertain state before the court recognizes it as a well-known trademark. Obviously, it is also detrimental to the international protection of well-known trademarks. 2. The Trademark Office, represented by China, mainly makes ex-post determinations and supplements them with ex-ante determinations. Article 4 of the "Interim Provisions on the Identification and Management of Well-known Trademarks" stipulates: "If a trademark registrant requests to protect the rights and interests of his well-known trademark, he shall submit an application to the State Administration for Industry and Commerce for recognition of a well-known trademark. The State Administration for Industry and Commerce may, according to the trademark registration and management To meet the needs of the work, well-known trademarks shall be recognized.” This is a reflection of the way in which the Trademark Office mainly conducts ex-post recognition and supplements it with ex-ante recognition. This method of determination is not much different from the court’s ex post facto determination method. The international protection of well-known trademarks is passive. So where should the right to identify well-known trademarks belong? There are two international methods: 1. The identification rights belong to the country where the trademark belongs. That is, in order to realize the protection of well-known trademarks, the Paris Convention gives the right to identify well-known trademarks to allied countries, and they will confirm the well-known trademarks in their own countries. This kind of regulation will inevitably lead to a series of rights, judicial, and administrative conflicts among the allied countries. On the contrary, it is not conducive to the universal recognition of well-known trademarks and fails to achieve the purpose of international protection. 2. Determine the ownership of the country whose protection is requested. In October 1996, Article 1 of the draft submitted by the International Bureau of World Intellectual Property at the second meeting of the Well-known Trademark Expert Committee held in Geneva stipulated: "In order to determine whether a trademark can enjoy the protection of a well-known trademark, the claims of the relevant trademark should be based on The relevant public domain in the territory that enjoys the protection of a well-known trademark is a sufficient condition." That is to say, regardless of whether the trademark is a well-known trademark in other contracting countries, as long as it does not meet the well-known conditions in the requested country
, the requested country has no obligation to implement well-known trademark protection for the trademark. [2] This obviously overemphasizes the rights of the requested state. It will also lead to judicial and administrative conflicts and even trade retaliation. Therefore, the re-attribution of recognition rights has become a focus issue in the protection of well-known trademarks.
(3) The scope of international protection is unclear
As for the scope of protection, countries mainly adopt "relative protection" "ism" and "absolute protectionism". The provisions of the Paris Convention indicate that only when a trademark is identical or similar to a well-known trademark and the goods indicated are also the same or similar, member states will not register it. That is, the special protection for well-known trademarks is limited to "similar" goods. It is the so-called "relative protectionism". Countries that adopt this approach include France, Germany, Italy, Switzerland and other countries. However, due to the narrow scope of "relative protectionism", well-known trademarks cannot be used on dissimilar products to affect the reputation of the goods they represent.be protected. For example, applying highly toxic pesticides to a logo that is the same as or similar to "** Coke" will vilify the image of "** Coke" and the products it represents, dilute the excellent product reputation of "** Coke", and reduce the reputation of "** Coke" its special appeal to consumers. [3] This kind of use of signs that are identical or similar to well-known trademarks on "dissimilar" goods also infringes on well-known trademarks, but is not within the prohibition of "relative protectionism". Therefore, "absolute protectionism" came into being, which was adopted in the Trips Agreement to extend the special protection conditions of the Paris Convention to "dissimilar goods". This makes up for the shortcoming of "relative protectionism" that cannot prohibit dilution. Most countries, led by the United States, have adopted "absolute protectionism", but the scope of its protection is too broad, which may lead to the abuse of well-known trademark rights and unfair competition, posing insecurity risks to the international protection of well-known trademarks. However, in practice, the two often intersect with each other, and the scope of protection cannot be completely determined. Therefore, objectively, it is still necessary to seek the optimal boundary of the scope of protection. Protective Measures Internationally, registered joint trademarks and defensive trademark methods are commonly used to prohibit dilution; in the registration system, trademarks that are identical or similar to well-known trademarks are often refused to be registered and trademarks that have been registered in bad faith and cause confusion with well-known trademarks are often revoked for protection. . However, the difference in protection measures is mainly due to the unclear scope of protection. Once the boundaries of the scope are clear, the protection measures will be uncontroversial.
(4) The trademark dispute settlement mechanism is unfair and not conducive to protecting developing countries
Today There is no specialized well-known trademark dispute settlement mechanism in the international community. There is also a lack of a strong well-known trademark management organization. When well-known trademark disputes occur, the usual approach is to apply the trademark dispute settlement mechanism established by the Paris Convention and the Trips Agreement. Since these two international Conventions mainly reflect the economic interests of developed countries, the dispute settlement procedures stipulated in them are obviously beneficial to developed countries and not conducive to protecting the interests of developing countries. For example: The Paris Convention requires trademark disputes to be submitted to the International Court of Justice for review. However, litigation in the International Court of Justice is expensive and the procedures are extremely cumbersome. This provision is an unbearable litigation burden for enterprises in developing countries with backward economic levels. In this regard, the Trips Agreement is much more sound than the Paris Convention, but the Trips Agreement requires developing countries to assume the same high level of protection obligations as developed countries. If the protection of trademark rights cannot be implemented, the "Examination Committee" can initiate "trade retaliation measures" to sanction the contracting party. Intellectual property protection in developing countries started later than in developed countries, and the legislation on well-known trademarks is blank. Parties subject to sanctions for failing to meet the requirements of Trips dispute settlement provisions are often developing countries. At the same time, Trips member countries are all based on the country’s international share.Developing countries have the right to trade share, but developing countries have a smaller share in international trade due to historical and economic reasons. When disputes occur, they cannot invoke Trips’ trade retaliation measures to sanction developed countries. However, developed countries can arbitrarily invoke this clause to impose sanctions on their development. China imposes economic sanctions. In particular, it should be pointed out that developed countries generally tend to protect their own well-known trademarks and reject registration applications for well-known trademarks from other countries. For example: Germany once judged Japan's "Mitsubishi" trademark to be similar to the country's "Mercedes-Benz" graphic; judged Japan's "**Pharmaceutical" to be similar to the country's "**Pharmaceutical" text arrangement; and rejected the two Japanese trademarks. Registration application. [4] Therefore, this dispute settlement mechanism is actually unfair. It is a protective umbrella for developed countries and cannot enable well-known trademark infringement disputes in all countries to be fairly resolved.
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