Making Much Ado About Theory: The Chinese Trademark Law

Abstract

Although the United States has had an active hand in the implementation of trademark law in China over the past century, the same frustrations that marked the turn of the twentieth century are reflected in the twenty-first century. This Article posits that one of the reasons that the United States has not seen the desired level of progress in China’s protection of trademarks lies in the imposition of an American theory of trademarks, which has inhibited U.S. reform efforts in China to date. This imposition is understandable, as little thought has been given to the Chinese theoretical justification for their trademark laws by American or Chinese scholars. However, this lack of understanding is at the root of the tension between the two countries. Such continued confrontation between the United States and China will not be productive since it will not bring about sustained change in China.

This Article will attempt to fill in this scholarly gap and provide a comprehensive and comparative analysis of the Chinese Trademark Law. Such analysis will show that a type of social planning theory has been unconsciously adopted for the theoretical justification of the Trademark Law. With this analysis, a better understanding of the Chinese perspective of trademark law can emerge. This understanding is the first step towards an improvement of the U.S. reform efforts in China and will also provide the United States with the ability to assist China with understanding its own theoretical justifications for the Trademark Law. With new revisions pending to the Trademark Law and the increased focus of the Chinese government on intellectual property matters due to the recent 2008 Beijing Olympics and the upcoming 2010 Shanghai World Expo, the time is ripe for an internal education campaign to analyze and understand what has been unconsciously adopted over the last two decades. A better informed dialogue will benefit both the United States and China and assist the Chinese with creating a platform for deeprooted, long-term change in their protection of trademarks.

Keywords: Trademarks, China, Theory, Utilitarian, Social Planning, Comparative