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 significat 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
【正文】
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. [FN1] 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. [FN2] 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. [FN3]
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. [FN4] To replace the 1870 Act， the Act of 1881 was appropriately limited and passed by Congress. [FN5] 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. [FN6] The 1905 Act was supplemented in 1920 and later replaced by the current Trademark Act of 1946. [FN7]
The Trademark Act of 1946， referred to as the Lanham Act， has been amended several times. [FN8] 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. [FN9] Unlike the traditional cause of action under trademark law， dilution theory protects not the consumer but rather the value of the trademark to the trademark holder. [FN10] The addition of dilution theory to the federal trademark law arena was a legislative act of particular moment to trademark holders， [FN11] representing significant developments in the history of trademark and an evolutionary shift in the focus of trademark protection. With the advent of the federal Dilution Act， the courts have an opportunity to carefully examine the underlying theoretical and statutory bases for tarnishment and blurring liability， and to develop an analytical framework that rationally furthers the statutory objectives of the Act. [FN12]
More significantly， in October 2006， the U.S. Congress passed the Trademark Dilution Revision Act （TDRA）， replacing the actual dilution standard with a likelihood of dilution standard. This new TDRA is a landmark law， which steps forward to a higher level of trademark protection in the U.S. As the International Trademark Association described， passage of the TDRA is a “very important achievement in the protection of famous and well-known trademarks” and “provides brand owners a powerful tool for protecting the trademarks they have worked so hard to build.” [FN13]
2.2. Trademark Legislation in China
The old PRC Trademark Laws mainly are the 1982 Trademark Law and 1995 Trademark Implementing Regulations. The former was based upon a first-to-file system to obtain trademark rights. With China's accession to WTO， China sought to comply with international standards on IPR protection by signing onto international and multinational treaties and conventions， thus China joined the 1996 Implementation Policy for the Madrid International Registration.
However， China was complained to have an insufficient mechanism for trademark's protection. There was criticism that China's trademark protection system failed to provide adequate enforcement against trademark infringement. Moreover， with its rapid development， China is more and more aware of the fact that respect for well-known marks is central to their economic reform. As a result， both the Trademark Law and Implementing Regulations were revised in 1993.
Unfortunately， the amended laws still failed to meet international standards. In order to conform more closely to international standards and meet its obligations under TRIPS， the Trademark Law was amended for the second time on October 27， 2001.
Therefore， at present， there have been three new regulations promulgated to strengthen its protection for well-known marks in China： the 1996 Implementation Policy for the Madrid International Registration， the 2001 Trademark Law of the People's Republic of China （2001Trademark Law） and the 2002 Implementing Regulations of the Trademark Law （Implementing Regulations）。
The 2001 Trademark Law provides a claim for priority in accordance with the Paris Convention. It addresses that both enterprises and individuals are eligible to apply for trademark registration. Besides， it also shifted the power of disputes' final adjudication from an administrative mechanism to a judicial mechanism. [FN14] The new mechanism provides for judicial review of all Trademark Review and Adjudication Board （TRAB） decisions， including cases involving the validity of trademark registration， allowing parties to institute legal proceedings if they are dissatisfied with the decision of the TRAB. [FN15] Particularly， pursuant to Article 13， trademarks that are considered “well-known” in China are afforded a greater scope of protection. [FN16] Yet， there hasn't been a definition of well-known mark under the new law， rather， there are merely a series of factors for the court or relevant administration agency to consider. But the legislation in China does continue to mature with the adoption of new laws and regulations to protect the rights of well-known mark owners， long called for by outside observers as a necessary improvement to trademark's legislation.
By and large， the trademark legislative history in the United States and China has fundamental differences. On the part of the United States， the establishment of dilution theory in the trademark legislation indicates that it put high priority to merchants' interests. A stronger protection is offered to companies which have gained “well-known” such an intangible asset. While with regard to China， it is in the earliest stage of well-known mark's protection. Much is left to be desired. Basically， well-known mark's protection in China is merely in compliance with international treaties with flexible requirements in well-known mark's protection， e.g. TRIPS. And it is confusion-based protection， favoring the position of the general public.
3. Comparative Studies on Well-Known Mark's Protection System between the US and China
3.1. Two Different Legal Theory Foundations
The United States
As a general rule， trademark infringement is intended only to protect consumers from confusion. It offers no protection for the diminution in value of a trademark to its owner resulting from competing marks that dilute its effectiveness. Dilution theory， however， steps in to fill the gap left by trademark infringement law. The dilution of a trademark represents a serious injury to a trademark because it damages a mark's capacity to identify a particular source. [FN17] The origin trademark dilution theory is generally attributable to Frank I. Schechter. He advocated eliminating the consumer confusion model of trademark law entirely， instead， recognizing distinctive trademarks as a property right in gross. [FN18] Based on such a rationale， the goal of trademark legislation in the US is to protect trademarks from being diluted. Under the new Revision Act， there is no requirement of trademark's “actual dilution”。 As long as “a likelihood of trademark dilution” occurs， the infringer can be held responsible. In this manner， we may see the fundamental philosophy in the context of well-known mark's protection under US laws stems from the idea that， well-known mark has been regarded as trademark holder's private property and personal asset. Consequently， well-known mark's protection is insurances of individual property. It places top-level priority to individuals' private rights， reflecting typical characteristic of western values.
China
China's well-known mark's protection legislation is far cry from the US. China laws incline to solely protect consumers' interest. Hence， the rationale behind the well-known mark's protection lies in prevention of consumers' confusion. Well-known marks are not perceived as private property as perceived in the US. Trademark infringement is not caused if there is no consumers' confusion of the trademark. The objective of this protection is limited to maintain market order and the rights of the general public. In other words， it places emphasis on public interest rather than individual rights.
It is understandable if we trace back to Chinese traditional cultural background. The Chinese people are guided by a tradition which encourages individuals to understand their responsibilities and obligations to others and be prepared to take into consideration the views of others， in order to avoid confrontation and create a harmonious society. [FN19] In a Confucian society motivated by a sense of loyalty to human relations， there was little demand for a system of litigation to protect individual rights， including intellectual property rights. [FN20] Asian tradition， including China， thus did not generate a notion of individual rights or 'droits subjectifs' and it has even been said that the notion of individual autonomy， unresponsiveness to others， is suggestive of 'idiocy or immorality'. [FN21] In consideration of China's traditional cultural views， it would help to understand why intellectual property rights， including trademark right are much less important in most Chinese people's minds than they are in the US. With this old mindset， it is doubted that trademark law would be fully applied to hinder infringement.
3.2. Comparison of Protection Scope
The United States
The United States trademark protection derives from common law rather than from legislation or from constitutional provisions like patents and copyrights. [FN22] The common law remains a basic source of protection for trademarks， but trademarks today can also be protected by both federal and state statutes. [FN23] Thus， where trademark problems arise there is often a complex interplay between common law rules and statutory provisions. [FN24]
In the US， assuming that a trademark qualifies for protection， rights to a trademark can be acquired in one of two ways： （1） by being the first to use the mark in commerce； or （2） by being the first to register the mark with the U.S. Patent and Trademark Office （“PTO”）。 [FN25] But registration with the PTO is not required for a trademark to be protected， however， registration does confer a number of benefits to the registering party. The advantage of having a registered mark is that after five years of unopposed use， the mark becomes “uncontestable”。 An uncontestable mark cannot be attacked for the reason that it is descriptive. Even without incontestability， a registered mark has a presumption of being a valid trademark， placing the burden on the plaintiff to attack the defendant's mark. [FN26]
Under state common law， trademarks are protected as part of unfair competition， and trademark registration is not required. [FN27] States' statutory provisions on trademarks differ， but most have adopted a version of the Model Trademark Bill （MTB） or the Uniform Deceptive Trade Practices Act （UDTPA）。 [FN28] The MTB provides for trademark registration while the UDTPA does not. [FN29]
While under federal law， registration is not required to establish rights in a mark， nor is it required to begin use of a mark. A federal registration， however， can secure benefits beyond the rights acquired by merely using a mark. [FN30] For example， the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration， and is entitled to use the mark nationwide. [FN31] Federal law provides the most extensive source of trademark protection， although state common law actions are still available.
In brief， the scope of trademark's protection is relatively broad in the US. Under some circumstances， trademark protection even extends the scope to not only covering words， symbols， and phrases， but also including other aspects of a product， such as its color or its packaging. And the requirement of well-known mark's protection can be easily met， particularly after the 2006 TDRA， once the distinctiveness of a well-known mark is attacked under the criteria of “likelihood of dilution”， trademark infringement occurs.
China
China is a first-to-file nation， the trademark protection under the Chinese law is based on the principle of registration. Hence， non-registered ordinary trademarks are not protected under the law. This practice is consistent with the civil law. The principal feature of trademark law in civil law countries is that， rights arise through registration. It means that a trademark owner creates his exclusive right of the mark by having it set down on the government's roll of trademarks. In its strictest interpretation， there are no trademark rights without registration. Therefore， trademark pirates can take advantage of this system to usurp a mark by winning the race to the register before the rightful owner.
However， the TRIPS Agreement extended the protection granted to trademarks to include service marks， [FN32] stating that the Paris Convention's articles related to the protection of well known trademarks shall be applied to service marks as well. [FN33] Most importantly， it states that a mark will be protected in a nation， even if it is not actually used or registered in that nation， as long as the mark is well-known in that nation. In order to be consistent with the TRIPS agreement， the new PRC Trademark Law Art 13 addresses that once a trademark is determined as a well-known mark in China， a greater scope of protection is afforded， that is， they are legally protected even if they are “not registered in China”。
Furthermore， under the PRC Trademark Law， an ordinary registered trademark can be exclusively used only on identical or similar goods or services covered by its registration， but a well-known mark registered in China has the exclusive right to be used not only on identical or similar goods or services， but also on dissimilar and non-identical goods or services.
Though China has gradually expanded the protection scope of well-known marks， compared to the United States， well-known marks are protected subject to certain limits.
3.3. Judicial Protection and Administrative Protection
The United States
As mentioned above， well-known mark's protection in the United States is built upon the theory that well-known mark is a private property. Thus the trademark infringement cases are judged following the principle of “no trial without complaint”。 Whether a trademark is a well-known mark or not is determined by judicial body. Cases are proceeded by judicial procedure. When a trademark holder finds his or her rights being infringed， he or she may seek remedies through either federal or state trademark law ， or even anti-unfair competition law. This system effectively prevents administrative interference.
China
Prior to the 2001 Trademark Law， China's trademark protection was entirely under the control of administrative authorities. When a well-known mark runs into conflict with an enterprise name， the well-known mark owner can only apply to the competent authorities for canceling the enterprise name， if he believes that another person's registration of the enterprise name is likely to deceive or confuse the public. The competent authorities must examine the enterprise name under the Provisions on Registration and Administration of Enterprise Names to find out if the circumstance of “being likely to deceive or confuse the public” does happen. There was no judicial review of administrative decisions.
Since the promulgation of the new Trademark Law， there has been a double track system in trademark's protection. Courts are authorized to determine a “well-known” mark， and also authorized to order an infringing party to cease its use and in some cases order property preservation. Now trademark owners can choose to enforce their rights through administrative measures before the Administration for Industry and Commerce（AIC）， or through court actions. Comparing the two paths， judicial protection is more stable， specific， effective and standard. But it is time-consuming， complicated and costly. On the other hand， administrative actions are quick and cheap. The evidence requirement is low but officials often are willing to act only on clear-cut cases. The major downside for administrative actions is that success is often short-lived. As far as an infringement case is concerned， only one track could be initiated at the same time.
The so-called double track protection mechanism， reflects China's strong administrative power， in the meantime， indicating such power is weakening overtime.
3.4. Dissimilarity in Burden of Proof
The United States
Under the New Revision Act， once the prerequisites for a dilution claim are satisfied， the owner of a mark can bring an action against any use of that mark which dilutes the mark's distinctive quality， either through “blurring” or “tarnishment”。 “Blurring” occurs when the power of the mark is weakened through its identification with dissimilar goods. “Tarnishment” occurs when the mark is cast in an unflattering light， typically through its association with inferior or unseemly products or services. Unlike an infringement claim， likelihood of confusion is not necessary. Instead， “likelihood of dilution” is sufficient to bring an action against the infringer. And it is “likelihood of dilution” that becomes the focus in proving trademark infringement. In the judicial practice， a considerable of sophisticated factors are involved in considering the criteria of “likelihood of dilution”。
China
As aforementioned， consumer's confusion is the focal point to initiate an action against trademark infringement in China. As a result， as long as a trademark has been determined as a well-known mark by AIC， if it runs into conflict with an enterprise name， the well-known mark owner may apply to the competent authorities for canceling the enterprise name if it believes that another person's registration of its well-known mark as an enterprise name is likely to deceive or confuse the public， and the competent authorities must examine the enterprise name under the Provisions on Registration and Administration of Enterprise Names to find out the circumstance of “being likely to deceive or confuse the public.” Or the second choice is to let the court to judge， with rigid and strictly complied legal procedures. The burden of proof on the plaintiff is much heavier.
3.5. Comparison of Enforcement in Well-Known Mark's Infringement
The United States
Successful plaintiffs are entitled to a wide range of remedies under federal law. Such plaintiffs are routinely awarded injunctions against further infringing or diluting use of the trademark. In trademark infringement suits， monetary relief may also be available， including： （1） defendant's profits， （2） damages sustained by the plaintiff， and （3） the costs of the action. Damages may be trebled upon showing of bad faith. In trademark dilution suits， however， damages are available only if the defendant willfully traded on the plaintiff's goodwill in using the mark. Otherwise， plaintiffs in a dilution action are limited to injunctive relief. [FN34]
China
Although China has made significant progress in the laws governing trademarks， China has not yet established an effective enforcement system to protect trademarks. It is said that the vast majority of problems which arise regarding IP enforcement are due not to deficiencies in the law itself， but to inconsistencies or weaknesses in the administrative enforcement bodies or the courts. [FN35] This raises serious concerns for foreign investors because enforcement is the key element of intellectual property right's protection in China.
In general， well-known mark's enforcement in China varies depending on it is registered or non-registered well-known mark. Infringement of a non-registered well-known mark is imposed the civil liability for ceasing the infringement， while infringement of a registered well-known mark is imposed all sorts of the civil liabilities， including damages.
The failure of effective enforcement could ascribe to the enforcement structure. Firstly， there can be long delays in enforcement actions and court rulings but remaining little likelihood of criminal prosecution. Secondly， enforcement actions are commonly considered as arbitrary and non-transparent. For instance， the regional AICs have weak administrative powers compared to the central AIC， and actions of municipal governmental may offset them in any case. In addition， municipal government officials may prefer to allocate resources to objectives other than IPR enforcement. [FN36]
China's ability and willingness to enforce trademark laws in order to protect trademark holders lag far behind the legal legislation. Because of this， American irritation with China's system largely stems from weak enforcement and the consequent deterrence of infringement.
4. Influencing Factors Behind the Two Different Protection Systems
Comparing the United States with China， well-known mark's protection in the US is more sufficient and fully-enforced. The trademark law in the US， roughly speaking， is more mature and well-structured. There are a considerable of multifaceted factors contributing to the profound differences in the two legal systems. Analysis of these factors may bring with enlightenment to current and future law development.
4.1. Traditional Culture， Religion and Societal Influences
An examination of different country's trademark laws and practices， as they exist today， must necessarily begin with a look at their own origin of traditional culture， religion and so on. As one scholar said， “law is a cultural phenomenon， the unconscious self-expression of a state and society， the clearest manifestation of desires and temptations. It goes without saying that this central pillar of western cultures has been heavily colored by nationalistic feelings which have penetrated even into its technical fields. Law has been shaped in and by national states and thus has itself become an instrument to promote national interests of others.” [FN37]
To take a general view of American culture， it is unique in the world， as it is nurtured， formed and developed under certain conditions which are characteristically American. The major factors contributing to the making of this new nation and the forming of a new culture are the hard environment， ethnic diversity and plural religion， which are quite different from other nations in the world. Particularly， in the context of plural religion， the fundamental American belief of individual freedom and individual rights is at the center of religious experience in the United States. The great diversity of ethnic backgrounds has produced religious pluralism； almost all of the religions of the world are now practiced in the United States. Christianity is the dominant religion in American and Protestant is predominate. Any individuals are equal before God and they believe they can communicate directly to God so they can share the same idea. Under the protestant， many new ones are formed and different explanations produce different sect of religion. Churches are independent and American religion is no longer religion seculars. The institution permits the practice of religion， and the political power is separate form religion. So there are more religions in American than in other countries.
In America， individual rights are regarded as basic rights of American constitutional democracy. They are expressed in the Declaration of Independence， the United States Constitution， and writings of the nation. “Right to private property” is one of the individual rights under the United States Constitution.
With a background of highly valuing individual rights in the society， unsurprisingly， in terms of trademark legislation， the US adopts the dilution theory to maintain individual rights.
What remains to be seen， however， is whether the new Revision Act will， as some critics suggest， negatively impact free speech， commercial speech， and tip the balance of traditional trademark law with excessive protection for the merchants' interests.
While in view of China， a country with more than 5000 years of history and over 50 different nationalities， its culture can trace roots to Confucianism. At the heart of Confucian thought is the concept of “li”。 In essence， “li” is the notion of a moral or social order guiding interpersonal relationships. Integrity and benevolence are to direct people in their interaction with others. [FN38]
When we take a look at the imperial China's society， we find that the domain of “li” is much greater than the domain of law. The legal side of the function was clearly neglected， and there was talk of deliberate toleration of corruption. The result was many maxims， of the type 'Win a lawsuit and lose a friend'， 'Better to be vexed to death than bring a lawsuit'， 'Litigation ultimately ends in disaster'. The Confucians preferred conciliation； if legal complaint was possible it was to be deterred by all possible means. [FN39] Due to the principles of political， social and familial relationships， litigation and the promotion of individual rights are avoided. Even today， Chinese justice is geared towards dispute settlement， rather than upholding individual rights. [FN40]
Till today， despite China's attempts to move closer to a western-style rule of law， traditional Confucian political philosophies still govern much of Chinese thought. On the whole， people are more reserved in their conduct. Even if they can be aggressive in the way they think， but they will be unlikely to show it to others. Most people do not have the desire to apply legal knowledge to prevent their individual rights from being infringed， or maintain individual rights by the means of lawsuit. Therefore， despite the creation of trademark laws， the protection of trademark is possibly hindered by the Confucian tradition， which cherishes the concept of “li” in societal relationships.
4.2. Case Law & Statutory Law
I would submit that it is easier to apply the dilution law to protect well-known marks in common law jurisdiction than civil law jurisdiction. A general picture of the differentiation between common law jurisdiction and civil law jurisdiction may facilitate to understand this argument.
Firstly， the difference encompasses diverse interpretation methods， ie in civil law jurisdictions， the first step in interpreting an ambiguous law is to discover the intention of the legislator by examining the legislation as a whole， including the preparatory works， as well as the provisions more immediately surrounding the obscure text， while in common law jurisdictions， statutes are to be objectively constructed according to certain rules standing by themselves against a case law background. [FN41]
Secondly， civil law goes from the general to the specific， whereas common law goes from specific to general. Trademark laws are applied to specific instances in civil law countries， while in common law countries court opinions apply as it follows “Stare decisis”。 At this point， it is conducive to the application of dilution theory. Because dilution criteria itself have complicated factors. To apply it properly requires a precedent to make reference. Although cases have some significance in civil law countries， they do not have real precedential （stare decisis） value.
Thirdly， there is a different order of priority in sources， i.e. civil law gives predominance to doctrine （including the codifiers' reports） over jurisprudence， while the opposite is true in the common law. [FN42] Moreover， in the common law system， courts are trusted with a measure of creativity， giving them the acknowledged power to evolve the law gradually through the accretion of individual cases. [FN43]
The US law is derived from the Anglo-Saxon model which is historically the foundation of the common law system. The American legal system， like the English， is methodologically mainly a case law system. The principle “Stare decisis” plays an important role in American judicial practices. Therefore， it seems that it is a good choice for the US to adopt the dilution theory to protect well-known marks.
In China， the difficulty is that statutes and regulations sit alongside social， cultural and economic norms， and they do not clearly prove determinative in a given case because of no “Stare decisis”。
4.3. Economic Element's Impact
From an economic perspective， trademark is a sign introduced to remedy a market failure. It facilitates purchase decisions by indicating the provenance of the goods， so that consumers can identify specific quality attributes deriving from their own， or others'， past experience. Trademark holders， on their part， have an incentive to invest in quality because they will be able to reap the benefits in terms of reputation. [FN44]
In other words， trademark law becomes an economic device which， opportunely designed， can produce incentives for maximizing market efficiency. This role must， of course， be recognized， as a vast body of literature has done， with its many positive economic consequences. [FN45]
As it is realized that there are underlying economic interests in strengthening well-known mark's protection， and as the most developed country， the US owns a number of internationally recognized firms （well-known mark holders）， it is of great importance for these firms to maintain their good reputation of products. Insufficient protection means limiting the ability of international firms to extract profits from their well-known mark products. Chinese enterprises should also pay attention to this point and advocate their legal rights actively.
4.4. The Influence of Government Policy in Trademark's Protection
China's political culture has been cited as a central reason for the weakness of the nation's intellectual property laws and enforcement. [FN46] In China， laws are considered the “concrete formulation of the Party's policy.” [FN47] 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.” [FN48] 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. [FN49]
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.
[FN1] Alejandro Guanes-Mersan， “A General Comparative Overview of Trademark Regulations Between The United States And Paraguay ”， （1999）， 16 Ariz. J. Int'l & Comp. Law 775.
[FN2] Frederick Mostert， “International Recognition and Protection of Famous and Well-known Marks，” Intellectual Property and Information Wealth （P. Yu ed. Praeger， 2007）， p266.
[FN3] See US Trade Representative， 2005 National Trade Estimates Report： China， available at： www.ustr.gov.
[FN4] Paul Goldstein， Edmund W.Kitch & Harvey S. Perlman， Selected Statutes And International Agreements On Unfair Competition， Trademark， Copyright And Patent. （Foundation Press 1999）。
[FN5] Frank H. Foster & Robert L. Shook， Patents， Copyrights， And Trademarks 19 （John Wiley & Sons， Inc. 2d. ed.， 1993） at 22.
[FN6] See id.
[FN7] See id. At 23.
[FN8] See id.
[FN9] Lynda J. Oswald， “ 'Tarnishment' And 'Blurring' Under The Federal Trademark Dilution Act of 1995”， （1999）， 36 Am. Bus. L.J. 255.
[FN10] See Viacom Inc. v. Ingram Enters.， Inc.， 141 F.3d 886， 890 n.7 （8th Cir. 1998）
[FN11] See note 9 above.
[FN12] See id.
[FN13] “Trademark Dilution Revision Act by United States Congress，” （INTA Press Release）， Sept 26， 2006.
[FN14] 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）。
[FN15] Peter Feng， Intellectual Property In China， （2d ed. 2003）， at 300.
[FN16] See note 14 above， art 13.
[FN17] 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.
[FN18] See id. At 762.
[FN19] 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）。
[FN20] See id.
[FN21] H. Patrick Glemn， Legal Traditions of The World， （Oxford University Press，
2d， ed. 2004）， at 320. Cited from Ames， 'Rites and Rights'（1988），at 200.
[FN22] See note 4 above， at 174.
[FN23] See id.
[FN24] See id.
[FN25]“Overview of Trademark Law”， available at： /d/file/p/2024/0425/404 [FN26] See http://en.wikipedia.org/wiki/United_States_trademark_law.
[FN27] “Trademark Law An Overview”， （visited Aug. 2， 1998） .
[FN28] See id.
[FN29] See id.
[FN30] U.S. Dept. of Com.， Patent And Trademark Office， Basics Facts About Trademarks 2 （1999）， at 1.
[FN31]See Lanham Act， supra note 132， at sec. 33， 15 U.S.C. ？1115.
[FN32] World Intellectual Property Organization （WIPO）， Introduction To Intellectual Property Theory And Practice 184 （Kluwer L. Int'l 1997）， at 184.
[FN33] See TRIPS Agreement， art. 16（2）。
[FN34] See note 25 above.
[FN35] “The Path Ahead for Intellectual Property Protection in China”， available at：
/d/file/p/2024/0425/articles-for-260-areas-of-law.asp [FN36] Keith E. Maskus， and Mei Yuan， “Economic Perspectives on US-China Relations in Intellectual Property Rights”， Jan 2006， available at： www.chinabalancesheet.org/Documents/Paper_IPR.PDF.
[FN37] “Legal Issues in International Trade”， Edited by Petar Sarcevic and Hans van Houtte（1990）， at 178.
[FN38] China and the world trading system ： entering the new millennium ， Edited by Deborah Cass， Brett Williams， George Barker. （Cambridge University Press， 2003）， at 327.
[FN39] See note 21 above， at 307.
[FN40] See note 38 above， at 327.
[FN41] Tetley， W.， “Mixed jurisdictions： common law vs civil law （codified and uncodified）” （2000） 60 La L Rev 327.
[FN42] See id. At 677.
[FN43] Phanor J. Eder， A Comparative Survey of Anglo-American And Latin-American Law 5 （N. Y. University Press 1950）， at 18.
[FN44] G.B. Ramello， “What's in a Sign？ Trademark Law and Economic Theory”，
Journal of Economic Surveys， Vol. 20， No. 4， pp. 547-565， September 2006.
[FN45] See id.
[FN46]Jessica C. Wong， “The Challenges Multinational Corporations Face in Protecting their Well-Known Trademarks in China”， （2006）， 31 Brooklyn J. Int'l L. 937.
[FN47] See note 15 above， at 11.
[FN48] 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.
[FN49] See id. At 90.
Bibliography：
Henry W. Ehrmann， Comparative legal cultures， （Englewood Cliffs， N.J.： Prentice-Hall， c1976.）
Glenn， H. Patrick， Legal traditions of the world ： sustainable diversity in law，
（Oxford University Press， 2004. 2d ed.）
W. Menski， Comparative Law in a Global Context， （Cambridge University Press 2006）
Alan S. Gutterman and Bentley J Anderson， 1997. Intellectual property in global markets ： a guide for foreign lawyers and managers （Kluwer Law International Ltd 1997）。
Yahong Li， 2005. International and Comparative Intellectual Property： Law， Policy and Practice （LexisNexis 2005）
Ilanah Simon， 2006. “The Actual Dilution Requirement In The United States， United Kingdom And European Union： A Comparative Analysis”， Journal of Science and Technology Law： 271.
Graeme B. Dinwoodie， 2006.“Some Remarks On The Limits Of Harmonization”， The John Marshall Law School Review of Intellectual Property Law： 596.
Lynda J. Oswald，1999. “'Tarnishment' And 'Blurring' Under The Federal Trademark Dilution Act Of 1995”， American Business Law Journal： 255.（香港大学法律学院·刘璐）
北大法律信息网
相关文章：
有所作为比“自责”更重要04-26
法警殴打律师——司法荒诞背后的司法权异化04-26
“小额法庭”助消基层法院案多人少难题04-26
嫁人当嫁富二男，娶妻当娶富二女？04-26
以清正的情怀为民司法04-26
消解成文法中法律统一适用之痛04-26
充分发挥审判职能保障经济社会又好又快发展的实践与思04-26
在倾力服务中实现法院工作跨越发展04-26
探索分权改革后的执行管理新路04-26