China''s ability and willingness to enforce trademark laws in order to protect trademark holders lag far behind the legal legislation. Because of this, American irritation with China''s system largely stems from weak enforcement and the consequent deterrence of infringement.
4. Influencing Factors Behind the Two Different Protection Systems
Comparing the United States with China, well-known mark''s protection in the US is more sufficient and fully-enforced. The trademark law in the US, roughly speaking, is more mature and well-structured. There are a considerable of multifaceted factors contributing to the profound differences in the two legal systems. Analysis of these factors may bring with enlightenment to current and future law development.
4.1. Traditional Culture, Religion and Societal Influences
An examination of different country''s trademark laws and practices, as they exist today, must necessarily begin with a look at their own origin of traditional culture, religion and so on. As one scholar said, "law is a cultural phenomenon, the unconscious self-expression of a state and society, the clearest manifestation of desires and temptations. It goes without saying that this central pillar of western cultures has been heavily colored by nationalistic feelings which have penetrated even into its technical fields. Law has been shaped in and by national states and thus has itself become an instrument to promote national interests of others."
To take a general view of American culture, it is unique in the world, as it is nurtured, formed and developed under certain conditions which are characteristically American. The major factors contributing to the making of this new nation and the forming of a new culture are the hard environment, ethnic diversity and plural religion, which are quite different from other nations in the world. Particularly, in the context of plural religion, the fundamental American belief of individual freedom and individual rights is at the center of religious experience in the United States. The great diversity of ethnic backgrounds has produced religious pluralism; almost all of the religions of the world are now practiced in the United States. Christianity is the dominant religion in American and Protestant is predominate. Any individuals are equal before God and they believe they can communicate directly to God so they can share the same idea. Under the protestant, many new ones are formed and different explanations produce different sect of religion. Churches are independent and American religion is no longer religion seculars. The institution permits the practice of religion, and the political power is separate form religion. So there are more religions in American than in other countries.
In America, individual rights are regarded as basic rights of American constitutional democracy. They are expressed in the Declaration of Independence, the United States Constitution, and writings of the nation. "Right to private property" is one of the individual rights under the United States Constitution.
With a background of highly valuing individual rights in the society, unsurprisingly, in terms of trademark legislation, the US adopts the dilution theory to maintain individual rights.
What remains to be seen, however, is whether the new Revision Act will, as some critics suggest, negatively impact free speech, commercial speech, and tip the balance of traditional trademark law with excessive protection for the merchants'' interests.
While in view of China, a country with more than 5000 years of history and over 50 different nationalities, its culture can trace roots to Confucianism. At the heart of Confucian thought is the concept of "li". In essence, "li" is the notion of a moral or social order guiding interpersonal relationships. Integrity and benevolence are to direct people in their interaction with others.
When we take a look at the imperial China''s society, we find that the domain of "li" is much greater than the domain of law. The legal side of the function was clearly neglected, and there was talk of deliberate toleration of corruption. The result was many maxims, of the type ''Win a lawsuit and lose a friend'', ''Better to be vexed to death than bring a lawsuit'', ''Litigation ultimately ends in disaster''. The Confucians preferred conciliation; if legal complaint was possible it was to be deterred by all possible means.
Due to the principles of political, social and familial relationships, litigation and the promotion of individual rights are avoided. Even today, Chinese justice is geared towards dispute settlement, rather than upholding individual rights.
