by Fabio Giacopello
Reading article 14 TML, we understand that a WKTM is a trademark that is extensively used and advertised, and enjoys high reputation in its field…
Chinese Trademark Law (TML) does not give a precise definition but it can be easily implied from the requirements posed for its recognition. Reading Article 14 TML, HFG Law & Intellectual Property it is understood that a WKTM is a trademark that is extensively used and advertised, and enjoys high reputation in its field[i].
Why Is Having A Well-Known Trademark Important?
From a merely legal point of view – leaving apart marketing considerations – the well-known trademark is a super hero, in the sense that it has “special powers” that “normal” trademarks don’t have. Such special powers are described in Article 13 of TML and are different, based on the fact that the WKTM is already registered or not in China. Provided below is a graphic representation to better explain the statute of rights or scope of protection granted to registered or unregistered WKTM.
A Well-Known Trademark That Is Not Registered In China Must Be Protected For Goods That Are Identical Or Similar To The Goods For Which The WKTM Is Famous.
Special powers consist in obtaining a protection identical to that granted to a registered trademark in the lack of registration and this is a big exception. Indeed a nonregistered and non-WKTM has almost zero rights. In any case, it is to be noted that having a non-registered WKTM is a very rare circumstance: the trademark shall be reputed, widely used and advertised, but its owner has not applied and registered it as a trademark.
More interestingly, the second part of Article art.13 takes into consideration the case of a Well-Known Trademark that is already registered. In such case, the special power granted is the so-called cross-class protection.