“解百纳”商标争议案评析
发布时间：2019-06-11 21:56
【摘要】：被冠以“中国葡萄酒业知识产权第一案”的“解百纳”商标权争议案,历时长达九年,影响巨大,引发了包括企业、行业协会、消费者和学界的广泛关注。在该案争议的背后,涉及到各个方面的利益博弈,要兼顾各方利益,平息纠纷,不仅对我国商标保护实践工作提出了挑战,也对检验我国商标保护理论有重要意义。商标获得注册的前提条件是必须具备显著性,能够区分和指示商品或服务的来源。作为在一定范围内被公众所知晓、普遍使用的通用名称,一方面反映出一类商品的自然属性,不具备显著性特征；另一方面由于其通用性属于公共资源,不允许独占而由全行业共享,一般被法律禁止注册。作为例外,通用名称要获得注册,就必需具备原词义之外的“第二含义”,并以此含义通过使用,能够建立起消费者与特定商品的联系。为了兼顾行业及大众利益,在特定条件下,他人以通用名称本身所具有的描述性特点使用该商标的文字,就有可能构成对注册商标的合理使用。另外,参与市场竞争过程中,不规范的商标使用行为,会弱化商标的显著性特征,如果不及时采取有效措施,放任自流,注册商标有可能沦为通用名称,最终因丧失显著性而失去商标权。“解百纳”商标争议案折射出我国商标制度不完善的地方：《商标法》中没有关于通用名称认定标准以及商标合理使用判定内容,其主体性地位缺失；其他相关规定过于原则化,实际可操作性差,难以有统一的认识和精确把握,这些问题的存在,使得该案在处理过程中更增加了复杂性。我国应当在研究和总结国内外理论和实践基础上,探讨上述标准的具体规则,最终形成立法,完善我国商标制度。
[Abstract]:The dispute over the trademark right of "the first case of intellectual property Rights in Chinese Wine Industry" lasted for nine years and had a great influence, which attracted extensive attention from enterprises, trade associations, consumers and academic circles. Behind the dispute in this case, there is a game of interests in all aspects. It is not only challenging the practice of trademark protection in our country, but also of great significance to test the theory of trademark protection in our country. The prerequisite for trademark registration is that it must be significant and able to distinguish and indicate the source of goods or services. As a common name widely used by the public in a certain range, on the one hand, it reflects the natural attributes of a class of commodities and does not have significant characteristics; on the other hand, because its universality belongs to public resources, it is not allowed to be monopolized and shared by the whole industry, which is generally prohibited by law. As an exception, in order to be registered, a general name must have a "second meaning" other than the original meaning, and by using this meaning, it can establish the relationship between consumers and specific goods. In order to take into account the interests of the industry and the public, under certain conditions, the use of the trademark by others with the descriptive characteristics of the common name itself may constitute a reasonable use of the registered trademark. In addition, in the process of participating in the market competition, the irregular trademark use behavior will weaken the significant characteristics of the trademark. If effective measures are not taken in time and laissez-faire, the registered trademark may become a common name and eventually lose the trademark right because of the loss of significance. The motion of "Jiebana" trademark dispute reflects the imperfection of trademark system in our country: there is no standard of identification of general name and the content of reasonable use of trademark in Trademark Law, and its subjective position is missing; other relevant provisions are too regular, the actual maneuverability is poor, and it is difficult to have a unified understanding and accurate grasp. The existence of these problems increases the complexity of the case in the process of dealing with it. On the basis of studying and summing up the theory and practice at home and abroad, our country should discuss the specific rules of the above standards, finally form legislation and perfect the trademark system of our country.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.43;D920.5
本文编号：2497481
[Abstract]:The dispute over the trademark right of "the first case of intellectual property Rights in Chinese Wine Industry" lasted for nine years and had a great influence, which attracted extensive attention from enterprises, trade associations, consumers and academic circles. Behind the dispute in this case, there is a game of interests in all aspects. It is not only challenging the practice of trademark protection in our country, but also of great significance to test the theory of trademark protection in our country. The prerequisite for trademark registration is that it must be significant and able to distinguish and indicate the source of goods or services. As a common name widely used by the public in a certain range, on the one hand, it reflects the natural attributes of a class of commodities and does not have significant characteristics; on the other hand, because its universality belongs to public resources, it is not allowed to be monopolized and shared by the whole industry, which is generally prohibited by law. As an exception, in order to be registered, a general name must have a "second meaning" other than the original meaning, and by using this meaning, it can establish the relationship between consumers and specific goods. In order to take into account the interests of the industry and the public, under certain conditions, the use of the trademark by others with the descriptive characteristics of the common name itself may constitute a reasonable use of the registered trademark. In addition, in the process of participating in the market competition, the irregular trademark use behavior will weaken the significant characteristics of the trademark. If effective measures are not taken in time and laissez-faire, the registered trademark may become a common name and eventually lose the trademark right because of the loss of significance. The motion of "Jiebana" trademark dispute reflects the imperfection of trademark system in our country: there is no standard of identification of general name and the content of reasonable use of trademark in Trademark Law, and its subjective position is missing; other relevant provisions are too regular, the actual maneuverability is poor, and it is difficult to have a unified understanding and accurate grasp. The existence of these problems increases the complexity of the case in the process of dealing with it. On the basis of studying and summing up the theory and practice at home and abroad, our country should discuss the specific rules of the above standards, finally form legislation and perfect the trademark system of our country.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.43;D920.5
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