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Furthermore, the term ‘blurring’ is not used in the EU statutory regime. Instead, the term “detriment to distinctive character” within the EU laws, is identical to “impairment to the distinctiveness of the famous mark” in terms of conception. In addition, “blurring” in both the U.S. and EU laws has the similar meaning, refering to activities that the later user attacks the distinctiveness of the earlier mark. And both jurisdictions agree that this harm is caused by the means of an association between the two marks. Thus in the test for blurring this factor is expected to be addressed to both judgements.
In general, regarding to well-known mark’s anti-dilution, the U.S. dilution laws focus on narrower anti-dilution concepts, whereas the an-dilution laws in EU emphasize “detriment”, “unfair advantage” as the key elements in protection of well-known marks, with an analysis from an unfair competition perspective. EU laws currently merely accept actual dilution theory.
(C) China’s Position
With China’s accession to WTO and in the step towards compliance with international agreements, China strengthened their protection for well-known marks by promulgating three new regulations: the Rules for Recognition and Protection for Well-Known Trademarks,
the Implementation Policy for the Madrid International Registration,
and the Measures Regarding Registration and Administration of Collective Marks and Certification Marks.
Generally, China’s current laws and regulations with regard to trademark protection are in accordance with international treaties. Under the Paris Convention, the definition of what constitutes a well-known mark is left to the "competent authority" of the nation to offer due protection. While there has not been a clear definition of what constitutes a well-known mark in China’s laws, pertaining to Art 14 of the PRC Trademark Law, a series of factors should be taken into consideration in determining well-known marks. China is a first-to-file nation which generally does not protect unregistered marks, but once a trademark is determined as a well-known mark, a greater scope of protection is afforded under Art 13 of the PRC Trademark Law. This is in line with the well-known marks doctrine, providing 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.
However, there still leaves much to be desired in China’s well-known mark’s protection. As a developing country, China’s well-known mark protection legislation inclines to merely protect consumers’ interest. Hence, the theory foundation behind the well-known mark’s protection lies in prevention of confusion. The objective of this protection is limited to maintain market order.
Moreover, the lack of a specific definition of a well-known mark has caused serious problems, including self-awarded well-known trademarks, well-known trademark trading, and counterfeit trademarks. The lack of certainty has also led many foreign companies to be hesitant to apply for formal well-known status.
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