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The Importance of Maintaining Trademark Anti-Dilution Protection
- 1 Shanghai University of political science and Law
* Author to whom correspondence should be addressed.
Abstract
Trademark anti-dilution protection is a legal measure aimed at protecting the rights and interests of trademarks and guaranteeing fair competition in the market, but whether it should be canceled has been controversial. The development of the theory of anti-dilution protection of well-known trademarks is a relatively popular research topic, while the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have provisions on anti-dilution of trademarks. Therefore, through the research method of literature review and theoretical analysis, this paper will discuss trademark anti-dilution protection in terms of its definition, implementation effect, and problems. In addition, the importance of trademark anti-dilution protection is elaborated from the perspectives of consumer protection, brand value, and innovation incentives, and the viewpoint of maintaining the existence of trademark anti-dilution protection is confirmed and put forward.
Keywords
anti-dilution protection, Trademark, existing problems, effects
[1]. 1J.THoMAs McCARTHy,McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION§ 6:31 n.15(4th ed.2007)[hereinafter McCARTHY](“[Many courts will conduct a balancing test: bal- ancing the public interest in free expression (First Amendment) against the public interest in avoiding consumer confusion (Lanham Act).”).This Note refers to“trademarks” in the broadest sense, including service marks,collective marks, certification marks trade names, and trade dress. See 15 U.S.C.§§ 11251127(2000).
[2]. Trademark registration provides ten years of initial protectionrenewable indefinitely. 15 U.SC§1058(2000).In contrastcopyright protection generally extends seventy years beyond the author’s life,17U.S.C.§302(2000), and patent protection is limited to twenty years from the filing date, 35 U.S.C.§154(a)(2)(2000).
[3]. 15 U.S.C.§1051(a)(3)(C)(2000);HR.REp.No.109-23 at 25(2005)(“Trademark law does not involve typical intellectual propertyrights...[T]he primary policy rationale for traditional trademark law rests on a policy of protecting consumers from mistake and deception.”).
[4]. Unlike other intellectual property doctrines, which derive explicitly from the Copyright and Patent Clause of the Constitution, trademark law has no direct constitutional basis.Trade-Mark Cases.100U.S82(1879)ThereforeCongress used its commerce clause powers to implement federal trademark protection. U.S. Const. art. 1,§ 8, cl. 3,8.
[5]. 1 McCArTHy, supra note 2,§ 2:12.
[6]. See Moseley v. V Secret CatalogueInc., 537 U.S.418429(2003).
[7]. See 2 ANNE GILSON LALONDE ET AL.,GILSON ON TRADEMARKS§5A.01[2](2007)[herein- after GILSON](“Proof of likelihood of confusionthe sine qua non of trademark infringement, is not required in a dilution action.”)(emphasis in original).
[8]. Jeremy M. Roe, The Current State of Antidilution Law: The Trademark Dilution Revision Act and the Identical Mark Presumption, 57 DePaul L.Rev.571(2008)Available at: https://via.library.depaul.edu/law-review/vol57/iss2/16
[9]. 1 McCARTHY, supra note 2§215.See White Tower Sys,Inc. v.White Castle Sys., Inc.,90F.2d67,69(6th Cir.1937)(“Good will may be defined as the favorable consideration shown by the purchasing public to goods known to emanate from a particular source.”
[10]. V Secret Catalogue,Inc. vMoseley, No. 3:98CV-395-S,2000 WL 370525,at*6(W.D.Ky. Feb.9,2000) (holding in favor of the plaintiff based on dilution bytarnishment)affd 259 F.3d464.476-77(6th Cir.2001)(affirming after finding dilution by tarnishment and blurring),rev'd537 U.S.418(2003).
[11]. See 15U.S.C.S 1125(c). LII https://www.law.cornell.edu>wex dilution (trademark) Wex US LawLll/ Legal Information Institute
[12]. See J. Thomas McCarthy, The Human Persona as Commercial Property: The Right of Publicity,19 COLUM.-VLA JL.&ARTS 129 (1995).312. See 17 US.C. S 106A (2000). International law offers a much broader scope of moral rights coverage. See Berne Convention for the Protection of Literary and Artistic Works, Article6bis,Sept.9,1886,available at http://www.wipo.int/treaties/en/ip/berne/pdf/trtdocs_wo001.pdf(last visited Sept.22,2007).
Cite this article
Zhu,X. (2024). The Importance of Maintaining Trademark Anti-Dilution Protection. Advances in Economics, Management and Political Sciences,74,50-55.
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