“第二含义”商标法律保护研究
发布时间：2018-10-10 17:53
【摘要】：保护“第二含义”商标的相关规则首先在英国法院中被提出来,后来被美国法院所发展,如今已纳入包括《TRIPS协定》、《巴黎公约》在内的国际公约,并成为世界各国商标法共同的法律制度。 文章采取比较分析方法和实证分析方法,探索“第二含义”商标的基本理论、适用范围、判断标准及合理使用。通过细致比较研究国外对“第二含义”商标的相关立法和实践经验,并结合我国现行《商标法》有关“第二含义”商标保护的立法及司法现状,指出我国“第二含义”商标法律保护存在的问题,提出完善我国“第二含义”商标法律保护制度的相关建议,具有重要的现实意义。 文章分为五部分。第一部分为“第二含义”商标概述。主要介绍了“第二含义”商标的概念、特征,以及“第二含义”与“第一含义”关系这三方面内容。 第二部分为保护“第二含义”商标的正当性基础。主要从商标显著性的本质属性、商标法的立法目的、公平正义原则三个方面来论证保护“第二含义”商标的合理性。 第三部分为“第二含义”商标法律保护的比较法研究。首先简要介绍了《巴黎公约》和《TRIPS协定》两个国际公约对“第二含义”商标的立法规定,其次重点介绍了其他国家有关“第二含义”商标的相关立法与司法实践,以此总结分析国外有关“第二含义”商标适用范围、判断标准的成熟做法。 第四部分为我国“第二含义”商标的立法与实践。通过分析我国有关“第二含义”商标的立法现状,以及对司法实践中“小肥羊”、“解百纳”和“红河”三个典型案例的剖析,揭示我国“第二含义”商标法律保护面临的困境,凸显出我国“第二含义”商标在适用、判断中存在的突出问题。 第五部分为我国“第二含义”商标保护制度的完善。该部分在借鉴国外先进立法与实践经验的基础上,结合我国商标实践的现实需求和可操作性要求,提出确立我国“第二含义”法律适用原则,完善“第二含义”商标适用范围、“描述性标志”和“第二含义”商标判断标准以及“第二含义”商标合理使用的相关立法建议。
[Abstract]:Rules relating to the protection of "second meaning" trademarks were first proposed in British courts, later developed by American courts and now included in international conventions, including the TRIPS Agreement, the Paris Convention, And become the common legal system of trademark law all over the world. This paper adopts comparative analysis method and empirical analysis method to explore the basic theory, applicable scope, judgment standard and reasonable use of "second meaning" trademark. By comparing and studying the relevant legislation and practical experience of the "second meaning" trademark in foreign countries, and combining with the current legislation and judicial situation of the "second meaning" trademark protection in the Trademark Law of our country, It is of great practical significance to point out the problems existing in the legal protection of trademark in the second meaning of our country, and to put forward some suggestions on how to perfect the legal protection system of trademark in the second meaning of our country. The article is divided into five parts. The first part is "the second meaning" trademark outline. This paper mainly introduces the concept and characteristics of "second meaning" trademark and the relationship between "second meaning" and "first meaning". The second part is the legitimacy foundation of protecting the second meaning trademark. The rationality of the protection of "second meaning" trademark is demonstrated from three aspects: the essential attribute of trademark salience, the legislative purpose of trademark law and the principle of fairness and justice. The third part is the comparative study of the legal protection of trademark in the second meaning. First of all, it briefly introduces the legislative provisions of the "second meaning" trademark in the Paris Convention and the TRIPS Agreement, and then focuses on the relevant legislation and judicial practice of other countries concerning the "second meaning" trademark. This paper summarizes and analyzes the mature practices of the foreign countries about the scope of trademark application and the standard of judging the "second meaning" trademark. The fourth part is the legislation and practice of the second meaning trademark in our country. By analyzing the legislation status of the trademark of "second meaning" in our country, and the analysis of three typical cases of "Little Sheep", "Cabernet" and "Red River" in judicial practice, This paper reveals the dilemma of the legal protection of the "second meaning" trademark in our country, and highlights the outstanding problems existing in the application and judgment of the "second meaning" trademark in our country. The fifth part is the perfection of trademark protection system of the second meaning of our country. On the basis of drawing lessons from foreign advanced legislation and practical experience, combined with the practical demand and operational requirements of trademark practice in our country, this part puts forward the establishment of the applicable principle of "second meaning" law in our country, and the perfection of the scope of trademark application of "second meaning". The standard of judging the trademark of descriptive mark and the second meaning, and the relevant legislative suggestion on the rational use of the trademark of the second meaning.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.1;D923.43
[Abstract]:Rules relating to the protection of "second meaning" trademarks were first proposed in British courts, later developed by American courts and now included in international conventions, including the TRIPS Agreement, the Paris Convention, And become the common legal system of trademark law all over the world. This paper adopts comparative analysis method and empirical analysis method to explore the basic theory, applicable scope, judgment standard and reasonable use of "second meaning" trademark. By comparing and studying the relevant legislation and practical experience of the "second meaning" trademark in foreign countries, and combining with the current legislation and judicial situation of the "second meaning" trademark protection in the Trademark Law of our country, It is of great practical significance to point out the problems existing in the legal protection of trademark in the second meaning of our country, and to put forward some suggestions on how to perfect the legal protection system of trademark in the second meaning of our country. The article is divided into five parts. The first part is "the second meaning" trademark outline. This paper mainly introduces the concept and characteristics of "second meaning" trademark and the relationship between "second meaning" and "first meaning". The second part is the legitimacy foundation of protecting the second meaning trademark. The rationality of the protection of "second meaning" trademark is demonstrated from three aspects: the essential attribute of trademark salience, the legislative purpose of trademark law and the principle of fairness and justice. The third part is the comparative study of the legal protection of trademark in the second meaning. First of all, it briefly introduces the legislative provisions of the "second meaning" trademark in the Paris Convention and the TRIPS Agreement, and then focuses on the relevant legislation and judicial practice of other countries concerning the "second meaning" trademark. This paper summarizes and analyzes the mature practices of the foreign countries about the scope of trademark application and the standard of judging the "second meaning" trademark. The fourth part is the legislation and practice of the second meaning trademark in our country. By analyzing the legislation status of the trademark of "second meaning" in our country, and the analysis of three typical cases of "Little Sheep", "Cabernet" and "Red River" in judicial practice, This paper reveals the dilemma of the legal protection of the "second meaning" trademark in our country, and highlights the outstanding problems existing in the application and judgment of the "second meaning" trademark in our country. The fifth part is the perfection of trademark protection system of the second meaning of our country. On the basis of drawing lessons from foreign advanced legislation and practical experience, combined with the practical demand and operational requirements of trademark practice in our country, this part puts forward the establishment of the applicable principle of "second meaning" law in our country, and the perfection of the scope of trademark application of "second meaning". The standard of judging the trademark of descriptive mark and the second meaning, and the relevant legislative suggestion on the rational use of the trademark of the second meaning.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.1;D923.43
【相似文献】
相关期刊论文 前10条
1 朱e，
本文编号：2262729
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2262729.html
