Under the worldwide financial environment, China is considered as a big market for every international corporation. When a brand wants to enter China, can its trademark be protected in the potential market? For instance, CarMan, a registered German trademark, is famous in Euro after using for several years. Now, CarMan is eager to enter China’s market, but there is a same trademark has been registered and used in the same goods as CarMan. The following part is trying to solve disputes arose from the situations like CarMan.
I. Trademark Law in China
A. Development of Trademark Law
After the founding of the People’s Republic of China, legislation of Trademark Law of People’s Republic of China (collectively “Trademark Law”) has gone through significant changes to reach the present framework. The regulations promulgated in 1963 amended the previous version, which linked trademark use with product quality control. The modern trade mark regime which has emerged in China began with the introduction of a new trademark law in 1982. This was the most comprehensive to date and served to accommodate many concerns of China’s new foreign investors. In 1993, the Trademark Law was amended.
The latest amendment happened in 2013 which added more strict judgment standard of bad faith registration and specific rules of the process to define well-known marks. This amendment will be effective in May.1 2014.
B. Statutory/code enacted to conform to Paris Convention
China provides special protection to well-known mark after becoming a member of Paris Convention in 1984. With respect to Paris Convention article 6bis, prohibiting to use and register other’s well-known mark, time period to do so and bad faith are taken into consideration. China’s statutes do not refer to international treaties directly; however, in the Trademark Law, there are specific provisions to conform to Paris Convention Article 6bis. For instance, Article 13 regulates the special protection to registered and unregistered well-known marks.
II. Protection of foreign well-known mark in China
A. Registered well-known mark.
The protection of well-known mark is divided into two parts: registered trademarks and unregistered ones. Firstly, the registered well-known mark has rights to prevent likelihood of confusion infringement and dilution infringement. In detail, under Trademark Law article 13, people cannot register or use a same or similar trademark that you copy, imitate or translate from a registered well-known mark in a different commodity. However, to complete a dilution infringement claim, the well-known mark holder has to prove the infringing trademark will mislead the public and make possible damage to the well-known mark. Misleading the public is an ambiguous concept, so Supreme Court promulgated one regulation to define it. Misleading means blurring well-known mark’s distinctiveness and tarnishing its reputation or misusing its reputation. It’s an ampliative explanation to...