Comparison of Well-Known Mark’s Protection Between the United States and China
刘璐
【摘要】Abstract: Nowadays, well-known marks themselves have become valuable business assets in the international trading world. The United States and China, as the most developed country and the largest developing country, they have highly different legal systems to protect well-known marks. By concrete comparison and in-depth analysis on their respective laws and judicial practices, it mirrors that there are diverse complicated factors influencing and directing well-known mark’s protection. And this article summarizes that it is likely to see significant strengthening of well-known mark’s protection in China, from which the United States and China would both benefit in the context of their mutual trading.
【关键词】Key word: well-known mark, comparison, traditional culture, Confucianism, individual rights, public interests
【全文】
1. Introduction
Trademarks are "signs" which distinguish goods and services of one producer from other similar producers. They act as a marketing tool and strategic focus used in a wide range of company activities. Successful marks, i,e. well-known marks, indicate the goods or services to be of a higher standard and quality. The trademark''s function has varied greatly, from a producer-identifier to wider functions including the following intangible elements: (a) producer goodwill; (b) overall image of the company; (c) product and service quality; and (d) consumer satisfaction.
It is said that the brands COCA-COLA, MICROSOFT, and IBM together have been estimated to be worth over US$180 billion as intellectual property assets.
Trademarks, particularly well-known marks or famous marks, are commonly regarded as one of a company''s greatest assets. Therefore, the protection of trademarks, particularly well-known marks, has been a significantly essential issue in each country''s intellectual property protection area.
Currently, well-known mark''s protection in China is weak and insufficient, counterfeiting, passing-off etc, is still a rampant phenomenon in the society. As the increasingly expanding trading is going on between the US and China, American companies and US-based multinational enterprises are paying more attention to China''s well-known mark''s protection. Driven by the US economic interests, U.S. trade policy authorities place a high priority on improving the environment for protecting intellectual property rights in China.
This article consists of five sections. The first is the introduction. Then it is followed by briefly introducing the overview of trademark legislative history both in the United States and China. In the third section, it addresses the concrete differences of well-known mark''s protection systems by applying a comparative analysis between the two countries. Fourthly, this article seeks to find the significant philosophy behind the different trademark legislation, and the comprehensive factors such as traditional culture, domestic policy etc, which are strongly influencing well-known mark''s protection in the US and China. Lastly, taking US-China trade relation into account, this article predicts the future trend of well-known mark''s protection in China.
2. Overview of Respective Trademark Legislative History
2.1. Trademark Legislation in the United States
U.S. legislative history begins with the first federal trademark statute enacted by Congress in 1870; however, shortly thereafter the U.S. Supreme Court struck the statute down as unconstitutional noting that trademarks had always been protected by state law, and thus for Congress to act required specific authority in the Constitution.
To replace the 1870 Act, the Act of 1881 was appropriately limited and passed by Congress.
It continued in effect until it was replaced by the 1905 Act, which was based on the theory that trademark ownership is acquired by adoption and use.
The 1905 Act was supplemented in 1920 and later replaced by the current Trademark Act of 1946.
The Trademark Act of 1946, referred to as the Lanham Act, has been amended several times.
The intent of this act was to prohibit trademark infringement, and to protect consumers from being confused into thinking they were buying a well-known branded product but in fact they were purchasing the inferior. The 1995 amendment of the Lanham Act is commonly identified as the Federal Trademark Dilution Act (FTDA), which took effect on January 16, 1996. This was the result of an intensive and lengthy lobbying effort led by the International Trademark Association. The FTDA amended section 45 of the Lanham Act. The goal of the FTDA is to enable businesses to protect the companies'' investment in branding their products. It is believed that the reluctance of the courts to embrace state dilution laws was one catalyst for the enactment of the federal legislation.
