China''s political culture has been cited as a central reason for the weakness of the nation''s intellectual property laws and enforcement.
In China, laws are considered the "concrete formulation of the Party''s policy."
These Confucian and Communist principles provide the ideological bases of most of China''s laws, which do not address the idea of providing "property-like protection for products of individual intellect."
This has created a political climate under which China does not promote IPR in the same manner as the United States and other Western nations.
Furthermore, the United States and other western nations have separation of powers. The government plays the role as a ''gate-keeper'' to ensure that its behavior is not in excess of legal power or authority. On the contrary, China has a history of being governed by powerful administration bureaucracies. In this regard, the power of law is dwarfed. To some extent, law has been considered by government as instrument to control social order or to achieve the goal of social development. This is an obstacle in strengthening China''s intellectual property rights''(IPRs) protection.
Lastly, "local protectionism" raises a stumbling block to effective enforcement as well. "Local protectionism" is most often encountered in smaller cities, towns or villages where the economy is less developed. Recognizing that China''s administrative law system remains underdeveloped, and local officials responsible for implementation and enforcement of laws and regulations are well known to favor local business, at the expense of outside commercial interests, in this sense, it is impossible to afford full protection to well-known mark owners who are usually non-locals.
5. Conclusion
Taking into consideration of the roles played by all those diverse factors mentioned above, I would argue that, the establishment and development of a legal system are embedded with a number of complex influencing factors. Among these factors, in particular, traditional culture has essentially significant impacts on a country''s legislation and law enforcement. In addition, what perhaps could be said is that, it is important, though somewhat difficult, to strike a balance between public interest and individual rights.
The US has been in a leading position in protecting well-known marks. Taking the dilution laws of the United States as a benchmark, China would be well advised to eliminate avoidable trouble in the process of establishing well-known mark''s protection system.
Despite China is still facing enormous challenges in IPRs'' protection. However, there are reasons for optimism on the way forward. In the past decade China has made great progress in reforming its economy, and it is becoming a major player in the world economy. In the area of intellectual property protection, China has enacted far-reaching legislation in a shorter period than other nations in modern history. The adoption of the Paris Convention, the TRIPS Agreement, and the enactment of New Trademark Law, all of these represent positive initial steps toward the establishment of better conditions for trade and investment in China. It recently has made great efforts in strengthening its enforcement through administrative, civil, criminal, and customs measures. For example, the trademark law clarifies the amounts of compensation available to victims of infringement. Enhanced access to judicial review is provided coupled with other means of streamlining access for plaintiffs to the national courts.
Chinese culture nowadays is influenced more and more by western culture. Although the political and commercial tensions between the US and China will consistently exist for a period of time. However, in light of the fact that domestic PRC companies are increasingly developing their own intellectual property; Chinese government has made commitments to IP protection, and transnational trading between the US and China is dramatically prospering, we should anticipate that, China''s IP protection will substantially improve at a correspondingly brisk pace, and the tensions of well-known mark''s protection between the US and China will gradually decrease.
In a word, as China''s economy expands, pressure on the government to strengthen its protection of well-known marks will develop from within. Western countries should afford China time to develop its economy, and assist in this endeavor.
【注释】作者简介：刘璐，香港大学法律学院08年硕士毕业生。
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Frederick Mostert, "International Recognition and Protection of Famous and Well-known Marks," Intellectual Property and Information Wealth (P. Yu ed. Praeger, 2007), p266.
See US Trade Representative, 2005 National Trade Estimates Report: China, available at: www.ustr.gov.
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See id.
See id. At 23.
See id.
Lynda J. Oswald, " ''Tarnishment'' And ''Blurring'' Under The Federal Trademark Dilution Act of 1995", (1999), 36 Am. Bus. L.J. 255.
See Viacom Inc. v. Ingram Enters., Inc., 141 F.3d 886, 890 n.7 (8th Cir. 1998)
See note 9 above.
See id.
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See Trademark Law of the People''s Republic of China art. 43 (promulgated by the Standing Comm. of the Fifth Nat''l People''s Cong., Oct. 27, 2001, effective Dec. 1, 2001).
Peter Feng, Intellectual Property In China, (2d ed. 2003), at 300.
See note 14 above, art 13.
James Robert Hughes, "The Federal Trademark Dilution Act of 1995 and the Evolution of the Dilution Doctrine-Is It A Truly Rational Basis For the Protection of Trademarks?." 1998 Det. C. L.Mich. St.U.L.Rev. 761,762.
See id. At 762.
Peter K. Yu, The Second Coming of Intellectual Property Rights in China, 24, Ocassional Papers In Intellectual Property, No. 11, from Benjamin N. Cardozo School of Law Yeshiva University (2002).
See id.
H. Patrick Glemn, Legal Traditions of The World, (Oxford University Press,
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See note 4 above, at 174.
See id.
See id.
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See http://en.wikipedia.org/wiki/United_States_trademark_law.
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See id.
See id.
U.S. Dept. of Com., Patent And Trademark Office, Basics Facts About Trademarks 2 (1999), at 1.
See Lanham Act, supra note 132, at sec. 33, 15 U.S.C. ?1115.
World Intellectual Property Organization (WIPO), Introduction To Intellectual Property Theory And Practice 184 (Kluwer L. Int''l 1997), at 184.
See TRIPS Agreement, art. 16(2).
See note 25 above.
"The Path Ahead for Intellectual Property Protection in China", available at:
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China and the world trading system : entering the new millennium , Edited by Deborah Cass, Brett Williams, George Barker. (Cambridge University Press, 2003), at 327.
See note 21 above, at 307.
See note 38 above, at 327.
Tetley, W., "Mixed jurisdictions: common law vs civil law (codified and uncodified)" (2000) 60 La L Rev 327.
See id. At 677.
Phanor J. Eder, A Comparative Survey of Anglo-American And Latin-American Law 5 (N. Y. University Press 1950), at 18.
G.B. Ramello, "What''s in a Sign? Trademark Law and Economic Theory",
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See id.
Jessica C. Wong, "The Challenges Multinational Corporations Face in Protecting their Well-Known Trademarks in China", (2006), 31 Brooklyn J. Int''l L. 937.
See note 15 above, at 11.
Amanda S. Reid, Enforcement of Intellectual Property Rights in Developing Countries: China as a Case Study, 13 Depaul-Lca J. Art& Ent. L. & Pol''Y 63, 72 (2003), at 92.
See id. At 90.
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