我國馳名商標的異化及其規(guī)制
發(fā)布時間：2018-12-31 09:47
【摘要】：“馳名商標”這一法律概念自《保護工業(yè)產(chǎn)權(quán)巴黎公約》海牙文本第一次出現(xiàn)以來,經(jīng)歷了數(shù)次修改,之后與《與貿(mào)易有關(guān)的知識產(chǎn)權(quán)協(xié)定》共同形成了國際上通行的馳名商標保護標準,即對被認定為馳名商標的商品商標和服務商標給予跨類別的保護,使得保護范圍不限于相同或相類似的商品,而且對于未注冊的商標也給予同樣的保護。 我國自20世紀80年代開始對馳名商標進行保護,至今己經(jīng)有二十多年的歷史,在這二十年間馳名商標保護經(jīng)歷了很多發(fā)展和變化,但是在這個過程中也出現(xiàn)了不和諧的因素,那就是馳名商標的異化現(xiàn)象。馳名商標在我國被異化成為“榮譽稱號”,成為企業(yè)爭先追逐的利益目標,這種現(xiàn)象使得我國的馳名商標保護制度背離了該制度建立的初衷,成為了中國特有的現(xiàn)象。 本文首先介紹了馳名商標的由來和含義,從其發(fā)展歷史來看,馳名商標是現(xiàn)實需要與制度抽象的結(jié)合。同時指出馳名商標保護的關(guān)鍵不在于如何定義馳名商標,而在于如何正確,合理,有效地認定馳名商標。之后對馳名商標在我國的發(fā)展歷程進行了回顧,并對馳名商標的制度本質(zhì)和法律意義進行了分析,指出馳名商標制度的本質(zhì)目的是為了保護馳名商標的權(quán)利人,制止侵權(quán)和不正當競爭,而其法律意義不在于創(chuàng)設一個與“普通商標”相區(qū)別的“馳名商標”概念,而是表明那些能夠到達馳名標準的商標所享有的一種特別保護,而且它調(diào)整著社會各主體之間商標利益關(guān)系,不僅是“私權(quán)”關(guān)系,更襯托著“公益”關(guān)系,馳名商標的保護機制是為了是各方的利益得以權(quán)衡,最終實現(xiàn)公平正義。 在第二章中,本文對異化的淵源及其含義進行了闡述,并對我國的馳名商標異化現(xiàn)象以及異化的危害進行了簡要的分析。在第三章中,對于我國馳名商標異化為何會出現(xiàn)的原因,本文從制度、政治、經(jīng)濟、社會等四個方面進行了詳細的分析,以探求馳名商標異化的真正原因。針對馳名商標出現(xiàn)的異化,我國的行政機關(guān)和司法機關(guān)都相繼采取了一些措施,但是未能徹底扭轉(zhuǎn)馳名商標異化的趨勢。 最后,本文對于馳名商標異化治理,提出了四個方面的構(gòu)想和建議,包括樹立正確理念,規(guī)制政府行為,完善法律制度,規(guī)范企業(yè)行為,其中最重要的一點是樹立正確的馳名商標理念。隨著對相應的法律制度等加以改革完善,對政府和企業(yè)的行為進行更深入的規(guī)范,相信異化的馳名商標保護制度會逐漸回歸到馳名商標立法制度原意上來。
[Abstract]:Since the first appearance of the Hague text of the Paris Convention for the Protection of Industrial property, the legal concept of "well-known trademark" has undergone several revisions. Subsequently, with the Agreement on Trade-Related aspects of intellectual property Rights (trips), the internationally accepted standard for the protection of well-known trademarks was formed, that is, the protection of goods and service trademarks recognized as well-known trademarks was of a cross-category nature. So that the scope of protection is not limited to the same or similar goods, and the same protection for unregistered trademarks. Since the 1980s, China has been protecting well-known trademarks, which has a history of more than 20 years. During the past 20 years, the protection of well-known trademarks has undergone a lot of development and changes, but in this process there have also been disharmonious factors. That is the alienation of well-known trademarks. Well-known trademark has been alienated into "honorary title" in our country, and has become the benefit target that enterprises chase first. This phenomenon makes our well-known trademark protection system deviate from the original intention of the establishment of this system and become a unique phenomenon in China. This paper first introduces the origin and meaning of well-known trademark, from its development history, well-known trademark is a combination of practical needs and institutional abstraction. At the same time, it points out that the key to the protection of well-known trademark is not how to define the well-known trademark, but how to correctly, reasonably and effectively identify the well-known trademark. Then it reviews the development of well-known trademark in our country, analyzes the institutional essence and legal significance of well-known trademark, and points out that the essential purpose of well-known trademark system is to protect the right owner of well-known trademark. The legal significance of putting an end to infringement and unfair competition is not to create a concept of "well-known trademark" as distinct from "ordinary trademark", but to indicate a special protection for trademarks that can reach the well-known standard, Moreover, it adjusts the relationship of trademark interests between different social subjects, which is not only "private right" relationship, but also "public good" relationship. The protection mechanism of well-known trademark is in order to balance the interests of all parties and finally realize fairness and justice. In the second chapter, the origin and meaning of alienation are expounded, and the phenomenon and harm of alienation of well-known trademarks in China are analyzed briefly. In the third chapter, the author makes a detailed analysis of the causes of the alienation of well-known trademarks in China from four aspects: institution, politics, economy and society, in order to find out the real causes of the alienation of well-known trademarks. In view of the alienation of well-known trademark, the administrative and judicial organs in our country have taken some measures one after another, but they have not completely reversed the trend of alienation of well-known trademark. Finally, this paper puts forward four ideas and suggestions for the governance of well-known trademark alienation, including setting up the correct idea, regulating the government behavior, perfecting the legal system, standardizing the enterprise behavior. One of the most important is to establish a correct concept of well-known trademarks. With the reform and perfection of the corresponding legal system and the deeper regulation of the behavior of the government and enterprises, it is believed that the alienated well-known trademark protection system will gradually return to the original intention of the well-known trademark legislation system.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D923.43;D997.1
本文編號：2396400
[Abstract]:Since the first appearance of the Hague text of the Paris Convention for the Protection of Industrial property, the legal concept of "well-known trademark" has undergone several revisions. Subsequently, with the Agreement on Trade-Related aspects of intellectual property Rights (trips), the internationally accepted standard for the protection of well-known trademarks was formed, that is, the protection of goods and service trademarks recognized as well-known trademarks was of a cross-category nature. So that the scope of protection is not limited to the same or similar goods, and the same protection for unregistered trademarks. Since the 1980s, China has been protecting well-known trademarks, which has a history of more than 20 years. During the past 20 years, the protection of well-known trademarks has undergone a lot of development and changes, but in this process there have also been disharmonious factors. That is the alienation of well-known trademarks. Well-known trademark has been alienated into "honorary title" in our country, and has become the benefit target that enterprises chase first. This phenomenon makes our well-known trademark protection system deviate from the original intention of the establishment of this system and become a unique phenomenon in China. This paper first introduces the origin and meaning of well-known trademark, from its development history, well-known trademark is a combination of practical needs and institutional abstraction. At the same time, it points out that the key to the protection of well-known trademark is not how to define the well-known trademark, but how to correctly, reasonably and effectively identify the well-known trademark. Then it reviews the development of well-known trademark in our country, analyzes the institutional essence and legal significance of well-known trademark, and points out that the essential purpose of well-known trademark system is to protect the right owner of well-known trademark. The legal significance of putting an end to infringement and unfair competition is not to create a concept of "well-known trademark" as distinct from "ordinary trademark", but to indicate a special protection for trademarks that can reach the well-known standard, Moreover, it adjusts the relationship of trademark interests between different social subjects, which is not only "private right" relationship, but also "public good" relationship. The protection mechanism of well-known trademark is in order to balance the interests of all parties and finally realize fairness and justice. In the second chapter, the origin and meaning of alienation are expounded, and the phenomenon and harm of alienation of well-known trademarks in China are analyzed briefly. In the third chapter, the author makes a detailed analysis of the causes of the alienation of well-known trademarks in China from four aspects: institution, politics, economy and society, in order to find out the real causes of the alienation of well-known trademarks. In view of the alienation of well-known trademark, the administrative and judicial organs in our country have taken some measures one after another, but they have not completely reversed the trend of alienation of well-known trademark. Finally, this paper puts forward four ideas and suggestions for the governance of well-known trademark alienation, including setting up the correct idea, regulating the government behavior, perfecting the legal system, standardizing the enterprise behavior. One of the most important is to establish a correct concept of well-known trademarks. With the reform and perfection of the corresponding legal system and the deeper regulation of the behavior of the government and enterprises, it is believed that the alienated well-known trademark protection system will gradually return to the original intention of the well-known trademark legislation system.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D923.43;D997.1
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