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Introduction

The evaluation of certain rules under the domestic law suggests that although the level of recognition and protection of well-known trademarks in China has been considerably improved and in line with international obligations since the 1990s,some critical problems remain.

This chapter aims to demonstrate and evaluate relevant rules concerning the recognition and protection of well-known trademarks at both international and domestic levels.At the international level,the Paris Convention (3.1),the TRIPS Agreement(3.2)and the Joint Recommendation(3.3)will be evaluated.At the domestic level,a group of rules will be assessed(3.4),followed by the conclusion(3.5).

The international treaties have established international norms for the recognition and protection of well-known trademarks which have in turn directly affected the development of laws and policies in China.

As to the Paris Convention(3.1),the‘background'part (3.1.1)gives the information about the role which the Paris Convention has played in terms of IPRs protection and China's attitude to this treaty.In particular,this part demonstrates four reasons why China joined the treaty in the 1980s.The second section (3.1.2)concentrates on a very specific rule under the Paris Convention concerning the well-known trademark protection:Art.6 bis .It argues that the art.6 bis represents a milestone in the history of international protection for well-known marks,but in many respects it is unsatisfactory.

As to the TRIPS Agreement (3.2),the ‘background'part(3.2.1)suggests that developing countries were prominent participants in the negotiations leading to the establishment of the WTO and the TRIPS Agreement.With its arduous journey to the WTO since 1986,this part shows how China,as the largest developing country and one of the most dynamic markets in the world,viewed the importance of the TRIPS Agreement to the prosperity of the nation.Section 3.2.2 briefly introduces the relationship between the Paris Convention and the TRIPS Agreement and clarifies that the obligations in terms of well-known trademarks under the Paris Convention are incorporated by reference to the TRIPS Agreement. After that,certain rules under the TRIPS Agreement will be evaluated (3.2.3).The rules relating to protectable subject matter,examination norms,protection class,and recognition principle are analysed.Compared with the Paris Convention,it is submitted that the TRIPS Agreement provides a wider range of protectable subject matter,more specific examination rules,protection across classes,and a principle of‘Final Judicial Review’.These rules facilitate Member States including China to better recognise and protect well-known trademarks.

Section 3.3 analyses the‘value associated with the mark'regulated in the Joint Recommendation.This factor goes further than the Paris Convention and the TRIPS Agreement,but due to ambiguous explanations,its effect upon well-known trademark recognition seems to vary in different countries.

After the three international treaties,a group of rules related to the recognition and protection of well-known trademarks in China will be evaluated in section 3.4.The discussion will be restricted to a consideration of changes made over the last fifteen years(2001—2015).The ‘background’(3.4.1)will briefly review China's situation before the 1990s in terms of legislative,economic and social development.Following it,China's‘Dual-Track'model specially designed for well-known trademark recognition and protection(3.4.2) and the three fundamental principles underpinning China's well-known trademark policy (3.4.3)will be evaluated.The final part(3.4.4)will scrutinize three important issues:range of protection (3.4.4.1),factors for examining well-known trademarks(3.4.4.2),and financial remedies(3.4.4.3).

Based on the analysis of these rules above,the conclusion(3.5)is that a unified and potent system of well-known trademark recognition and protection in accord with international standards has been established in China.However,the system as such is still unsatisfactory and requires further improvement. hSPhCkRvpHrdpund2QaRRpyjAQqCXPysV805PBoFp6ktR6ugkYTTPuD6dOeeye+2

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