下载掌阅APP，畅读海量书库
立即打开
Developing countries were prominent participants in the negotiations leading to the establishment of the WTO and the TRIPS Agreement．
The interaction between developing and developed countries in the process of erecting a global trading system is vital in the interests of long term stability of the global trading system．
Since IPRs are seen as the ‘most valuable source of wealth for twenty－first century economic development’，
any conflict regarding IPRs in the course of trading can only be properly resolved by taking‘into account the interests of ．．．［the developed］countries ．．．［without］prejudicing the interests of developing countries．’
[5]
As suggested by Reichman，‘The extent to which these standards（
international minimum standards of IP protection under TRIPS
）will exert pro－or anti－competitive effects on global commerce depend in part on how the developing countries implement them．’
As the largest developing country
[6]
and one of the most dynamic markets in the world，it is self－evident that China has been in a position to play an important role in harmonizing and modernizing the global IPRs system．China's journey to the WTO began soon after its accession to the Paris Convention in 1985 and it took fifteen years（1986—2001）for China to go through the arduous and prolonged negotiations．In 1986，China formally submitted to the GATTSecretariat its request of resumption of China's status as a contracting party to the GATT．
During the 1990s，China actively participated in international negotiations and cooperated with its trading partners in order to deepen reforms and accommodate developments．China has actively engaged in the Uruguay Round（1986—1994）and contributed to the negotiation of the TRIPS Agreement which created new international standards for IPRs protection．
China became the 143
th
Member of the WTO on 11 December 2001．But this comes after a long set of negotiations in which China has had to satisfy its trading partners，notably the US and the EU，that it was doing enough to open its economy to international competition．
[7]
The former Chinese President Hu Jintao commented that，‘To join the WTO was a major strategic decision based on our comprehensive analysis of the situation at home and abroad in order to push forward China's reform and opening－up and socialist modernization drive’．And Wen Jiabao，the former Chinese Premier，described China's WTO membership as‘a full embrace of this world’．
The Paris Convention is no longer alone in creating an obligation to protect rights in well－known trademarks．The TRIPS Agreement was seen as a symbol of ‘a revolution in international intellectual property law'and‘the most ambitious intellectual property convention ever attempted’．
The obligations under the Paris Convention are incorporated by reference into the TRIPs Agreement．Thus，art．2 （1）of the TRIPS Agreement emphasises the importance of fully complying with obligations upon relevant provisions under the Paris Convention．
Accordingly art．6
bis
of the Paris Convention concerning well－known trademarks binds WTO Member States whether or not they are signatories to the Paris Convention．
As a Member State，China commits to its obligations under the TRIPS Agreement and thus Chinese Laws will be in line with it．As to the recognition issues，the TRIPS Agreement provides some guidance．One merit which makes the TRIPs Agreement superior to the Paris Convention is that it provides more certain rules for the recognition and protection of well－known trademarks．
So far as the protection afforded to well－known trademarks is concerned，the TRIPS Agreement is superior to Paris Convention in four respects．It provides for：1）a wider range of protectable subject matter；2）more specific examination rules；3）protection across classes；and 4）establishing a principle of‘Final Judicial Review’．
Firstly，compared with art．6
bis
of the Paris Convention，the TRIPS Agreement expands the range of marks that are capable of being well－known trademarks，
in particular by extending protection to
service marks
．
[8]
This change is important because nowadays service marks have the same function as goods marks in terms of indicating the origins of the products to which they are applied．
Secondly，art．16 （2）of the TRIPS Agreement requires competent authorities of Member States to‘take account of the
knowledge
of the trademark
in the relevant sector ofthe public
，including
knowledge
in the Member concerned which has been obtained
as a result of the promotion of the trademark
．’
（emphasis added）
This article thus lowers the threshold for being determined as‘well－known'and goes some way to remedy the‘considerable uncertainty'caused by art．6
bis
in the Paris Convention．
[9]
However，whilst the idea of‘relevant public'is‘a big step'towards improvement of the international standard，it admits a wide range of complexity and flexibility．For instance，art．16（2）provides no substantial prescription on the meaning of either ‘relevant sector of the public'or‘promotion of the trademark’．Hence，art．16 （2）actually leaves competent authorities discretion in interpreting both concepts in practice．
Thirdly，according to the Paris Convention，only those marks which are used in respect of
identical
or
similar goods
with well－known trademarks will be liable for well－known trademark infringements．
A significant advancement of the TRIPS Agreement is that it stipulates that the protection given to well－known trademarks should extend to goods or
services
which are
dissimilar
to those in respect of which a trademark is registered．
Art．16（3）in the TRIPS Agreement provides that，
Article 6
bis
of the Paris Convention （1967）shall apply，
mutatis mutandis
，to goods or services which are
not similar
to those in respect of which a trademarkis
registered
，provided that use of that trademarkin relation to those goods or services would indicate a
connection
between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use．
（emphasis added）
This element provides a powerful weapon for well－known trademark owners to defend trademark infringements in China where free－riding on the reputation of both domestic and foreign well－known trademarks have become widespread．
Finally，art．41（4）establishes the‘Final Judicial Review'principle．This principle has a pivotal role to play in the modernization of China's IP law．
In particular，this principle accelerates the transition from the obsolete‘Sole－Track'to the advanced ‘Dual－Track'protection and management system over well－known trademarks．
Art．41（4）stipulates that，
Parties to a proceeding shall have an opportunity for review by a
judicial authority
of
final administrative decisions
and，subject to jurisdictional provisions in a Member's law concerning the importance of a case，of at least the legal aspects of initial judicial decisions on the merits of a case．．．
（emphasis added）
Prior to 2001，very few well－known trademark cases were determined by Chinese courts．
[10]
China's accession to the WTO in December 20010
forced China to take measures to have those administrative cases recognising well－known trademarks reviewed by judicial authorities．
The‘Final Judicial Review'principle under the TRIPS Agreement in this way exerted a positive influence on well－known trademark protection in China through the establishment of the‘Dual－Track'system．
[5] Charter of Economic Rights and Duties of States，G．A．Res．3281（XXIX），U．N．GAOR，29 th Sess．，Supp．No．31，U．N．Doc．A 9631（1974）；J．H．Reichman，‘Compliance with the TRIPS Agreement：Introduction to a Scholarly Debate’（1996）29（3）Vand．J．Transnat'l L．363，371．（“［I］n advocating ‘an even－handed approach'to international intellectual property relations，I argued that it would violate fundamental precepts of international economic law if the developed countries failed to differentiate between developing and least－developing countries．．．when formulating minimum standards under the TRIPS Agreement”）．
[6] Hu Jintao，‘China Still Largest Developing Country in World’ People ’ s Daily Online （Beijing，1 July 2011）．〈http://english．people．com．cn/90001/90776/90785/7426666．html〉accessed 5 July 2013．
[7] BBC，‘China joins the WTO—at last’（ BBCNews ，11 December 2001）〈http://news．bbc．co．uk/1/hi/business/1702241．stm〉accessed 22 March 2016．
[8] Art．16（2），TRIPS Agreement．（‘Article 6 bis of the Paris Convention（1967）shall apply， mutatis mutandis ，to services．’）
[9] Leah C．Grinvald，‘A Tale of Two Theories of Well－Known Marks’（2010）13 （1）Vand．J．Ent．＆Tech．L．1，23；World Intellectual Prop．Org．Comm．of Experts on Well－Known Marks，Protection of Well－Known Marks：Results of the Study by the International Bureau and Prospects for Improvement of the Existing Situation，at 6，WKM/CE/I/2 （July 18，1995），available at 〈http://www.wipo.int/mdocsarchives/WKM＿CE＿I＿95/WKM＿CE＿I＿2＿E.pdf〉accessed 5 July 2013．（hereinafter referred to as‘WIPO Expert Committee’）（‘［S］ince the Paris Convention itself does not define the conditions under which a trademark is to be considered well known，considerable uncertainty exists as regards the circumstances under which a trademark owner can rely on Article 6 bis of the Paris Convention．’）．
[10] The Chinese Courts usually hear cases involving well－known trademarks and make judgments pursuant to international IP treaties，mostly notable referring to art．6 bis of the Paris Convention prior to 2001．See，for instance， P＆G v Shanghai Chenxuan Tech Co ．， Ltd （2000）Hu Er Zhong Zhi Chu Zi No．23 and（2001）Hu Gao Zhi Zhong Zi No．4．