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Harmonization implies a deliberate and negotiated process aiming at producing a legislative act. Compared with unification of international anti-dilution laws, in my view, harmonization in statutory anti-dilution laws by means of negotiation and coordination among countries would be more realistic and accessible. There are two main reasons. Firstly, on the basis of the common recognition that the more famous the trademark is, the better protection should be offered, developed and developing countries, to some extent, are possible to reach consensus in the establishment of anti-dilution criteria under international treaties. Secondly, being aware of the fact that nowadays multinational companies are gaining incremental popularity in many countries. They are playing a significant role in national economy, perceived as an engine to spur the economic growth. On the other hand, the voice calling for anti-dilution of trademarks from multinational companies is increasingly rising. In this regard, countries are likely to coordinate national anti-dilution laws with other countries’ anti-dilution laws to protect multinational companies’ well-known marks internationally.
If one wished convergence, for example, of the precise means of assessing a likelihood of confusion, that does not, and for the foreseeable future will not, exist at the global level. Global harmonization of trademark law cannot move far beyond general commitments, such as to protect against a likelihood of confusion.
Hence, for the present, to seek a harmonized way to resolve the problem is a better choice.
I would argue that the approach to international harmonized anti-dilution is an interactive process. On the one hand, international treaties are fundamentally aimed at securing commitment from nations to very basic standards of IP protection, and to make that protection available on a national treatment basis.
] Therefore, international anti-dilution legislation should allow flexibility and leeway for member countries to regulate at their will within certain scope. On the other hand, national anti-dilution legislation should base on not only its domestic interests, but also take into account the interests of other members.
【注释】Frederick Mostert, “International Recognition and Protection of Famous and Well-known Marks,” Intellectual Property and Information Wealth (P. Yu ed. Praeger, 2007), p266.
Ibid, p265.
Yahong Li, International and Comparative Intellectual Property: Law, Policy and Practice (Bilingual Edition, LexisNexis, 2005) p51.
Ibid.
Ibid.
See Agreement on Trade Related Aspects of Intellectual Property Rights, at pt. II, sec. II, art. 16(2).
See Paris Convention for the Protection of Industrial Property, available at: http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#TopOfPage
Supra note 3, p56.
Ilanah Simon, “The Actual Dilution Requirement In The United States, United Kingdom And European Union: A Comparative Analysis”, (2006), 12 B.U. J. SCI. & TECH. L. 271.
See Viacom Inc. v. Ingram Enters., Inc., 141 F.3d 886, 890 n.7 (8th Cir. 1998)
Lynda J. Oswald, “ ‘Tarnishment’ And ‘Blurring’ Under The Federal Trademark Dilution Act of 1995”, (1999), 36 Am. Bus. L.J. 255.
See 15 U.S.C. 1127 (Supp. II 1996).
See H.R. Rep. No. 104-374, at 8.
Federal Trademark Dilution Act of 1946, 15 U.S.C. § 1125. Section 43 (1995).
See http://www.ladas.com/BULLETINS/1996/FederalDilution.html
See 3 McCarthy, McCarthy on Trademarks and Unfair Competition 3.2 (4th ed. 1997).
24:68 (rel. 4, Dec. 1997).
Ibid, at 24-116.
Ibid.
See Hormel Foods Co. v. Jim Henson Prods., 73 F.3d 497, 506 (2d Cir. 1996).
Supra note 17.
Supra note 11.
Restatement (Third) of the Law on Unfair Competition 25 cmt. f (1995).
Supra note 11.
Ibid.
Supra note 22.
Supra note 9.
Council Directive 89/104/EEC of Dec. 21, 1988, art. 5(2).
Case C-375/97, General Motors Corp. v. Yplon, S.A., E.C.R. I-5421, E.T.M.R. 122, P 43
Provisions on the Determination and Protection of Well-Known Marks, Apr. 17, 2003 (P.R.C.), available at http://sbj.saic.gov.cn/english/show.asp?id=57&bm=flfg
Measures for the Implementation of International Registration under Madrid Agreement, Apr. 17, 2003 (P.R.C.), available at http://sbj.saic.gov.cn/english/show.asp?id=63&bm=flfg
Measures Regarding Registration and Administration of Collective Trademarks and Certification Trademarks, Apr. 17, 2003 (P.R.C.), available at http://sbj.saic.gov.cn/english/show.asp?id=60&bm=flfg.
Jessica C. Wong, “The Challenges Multinational Corporations Face in Protecting their Well-Known Trademarks in China”, (2006), 31 Brooklyn J. Int''l L. 937.
Graeme B. Dinwoodie, “Some Remarks On The Limits Of Harmonization”, (2006), 5 J. Marshall Rev. Intell. Prop. L. 596.
] Ibid.
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