A Tale of Two Theories of Well Known Marks

The well-known marks doctrine presents a conundrum in international trademark law. Although protecting foreign well-known trademarks has been a treaty obligation since 1925, courts around the world, and in the United States and China in particular, do not uniformly apply the doctrine. This lack of uniform protection leads to the question of whether these countries are complying with their international obligations. While brand owners and some commentators would answer this question in the negative, this Article provides a different perspective. This Article offers an alternative approach to answering the compliance question: Before considering the question, one must examine the perspective from which compliance is being assessed. This analysis is important because the perception of compliance depends on the theoretical perspective from which these well-known marks cases are viewed. These theoretical perspectives have thus far been unrecognized, and this Article attempts to bring them to light. In so doing, this Article provides a more nuanced approach to analyze the compliance question, which can ultimately assist in providing better answers