Courts can solve trademark laws; Reforms are needed to properly apply trademark law.

Well-known trademarks have a marked influence on our economy, our society, and our daily lives; the recognition of well-known trademarks is a topic of great concern for relevant industries and all circles of society. In recent years, courts across the land have recognized a good number of wellknown trademarks and protected the well-known trademark owners’ legal rights, resulting in a favorable societal effect. Of course, a few new situations—new problems—have emerged over the course of adjudicating well-known trademark recognition. These problems require further research and standardization; judicial standards need to be refined and unified; the law needs to be correctly applied. Courts must grasp the proper guidance for determining well-known trademarks. The determination of “well-known trademark” status for trademarks reaching a degree of fame is only a prerequisite fact for bestowing special legal protection; it is a factual determination. Deviating from a determination of the facts of the case in accordance with the established law to pursue honorary titles, the effectiveness of advertising, and other commercial valuations would cause a change in the well-known trademark determination system. It would give rise to a series of unhealthy effects and negative influences. Courts at every level must accurately understand the original meaning of the established law when determining well-known trademarks; they must grasp the correct direction and ensure the correctness and public acceptance of judicial determinations. They must guide and protect the healthy development of the well-known trademark determination system and earnestly safeguard the positive image of the people’s court in making legal determinations of well-known trademarks. Courts must strengthen their focus on strict application of the law in judicial determination of well-known trademarks. First, courts must grasp the scope of judicial determination of well-known trademarks. A determination of a well-known trademark must have support in the text of the law—it must be based on trademark law and the relevant judicial interpretations. A court may only determine a well-known trademark in adjudication of cases involving protection of registered well-known trademarks across categories, requests to enjoin infringement of unregistered well-known trademarks, and trademark infringement and unfair competition civil disputes relating to domain name and well-known trademark conflicts. Courts must carry out a strict investigation in accordance with the law of whether the parties have a trademark infringement dispute and make sure that case adjudication requires the determination of a well-known trademark. Courts may not make determinations of well-known trademarks when the case is outside the scope of a determination or if the plaintiff fails to make a prima facie case, even if a determination is within the scope the infringement complaint. Second, courts must maintain the principles of passive determination and case-bycase determination. Determining a well-known trademark must occur after the plaintiff has already alleged a clear interpretation of the facts as a basis for suing the defendant for infringement; the court may not rely on its own authority to independently make a determination. A determination made would only be binding as to the disposition of the particular case. Third, courts must reasonably determine the scope of protection for well-known trademarks. As for the scope of protection for well-known trademarks across categories, courts should make reasonable determinations based on the specific situation of the case; they should consider factors such as the trademark’s degree of fame and distinctiveness and the misleading consequences of the defendant’s behavior. Protection cannot turn into unprincipled protection covering all categories. Unregistered trademarks seeking determination as well-known should first conform to the regulations of the trademark law governing the requirements of trademark creation. Courts must strengthen their focus on the facts governing judicial determination of well-known trademarks. First, courts should be strict in determining whether a true dispute exists. An adjudicating court should conscientiously verify the defendant’s status and relevant behavior; it should prevent sedulous efforts to create disputes for the purpose of gaining wellknown trademark status. Second, courts should correctly apply determination standards for well-known trademarks. Article 14 of the trademark law stipulates the relevant factors to be considered when determining a well-known trademark. When a court determines a wellknown trademark, it must proceed according to the facts of the case and carry out a comprehensive examination as to whether the request to designate a trademark well-known is in accord with legal requirements; it should avoid isolated, one-sided considerations of the relevant factors. A recognized well-known trademark at the very least should have a relatively high degree of market recognition in most regions in the domestic market; it should be familiar to the relevant public. Courts may appropriately lighten a party’s burden of producing evidence when its trademark’s degree of recognition has truly reached universal recognition. Third, courts should carry out a case-by-case examination in accordance with the law for trademarks that have already been designated as well-known. If parties dispute over a trademark that has been determined well-known by an administrative supervising body or by a court, they should produce relevant evidence; further, the court should evaluate and determine in accordance with the law whether the trademark conforms to well-known trademark qualifications. Courts must strengthen supervision and guidance for determining well-known trademarks. Courts must strictly carry out the system of filing and recordation for well-known trademark recognition. The court granting recognition should timely and in accordance with relevant regulations provide a record for review by the Supreme Court after the judgment goes into effect. Every higher-level court must take up the responsibility of providing overall guidance for well-known mark recognition and supervision of specific cases. They must conscientiously research, compile, and timely report on problems and situations that arise. They must rectify improper ways of doing things in strict accordance with the law and avoid deviations in work. As for cases where disputes were intentionally created to obtain well-known trademark recognition, those cases that can be discovered should be treated according to Article 102 of the Civil Procedure Law,28 which governs harmful litigation behavior, and previous rulings and recognition of well-known trademark status should be withdrawn in accordance with the law.