我国驰名商标的异化及其规制
发布时间：2018-12-31 09:47
【摘要】：“驰名商标”这一法律概念自《保护工业产权巴黎公约》海牙文本第一次出现以来,经历了数次修改,之后与《与贸易有关的知识产权协定》共同形成了国际上通行的驰名商标保护标准,即对被认定为驰名商标的商品商标和服务商标给予跨类别的保护,使得保护范围不限于相同或相类似的商品,而且对于未注册的商标也给予同样的保护。 我国自20世纪80年代开始对驰名商标进行保护,至今己经有二十多年的历史,在这二十年间驰名商标保护经历了很多发展和变化,但是在这个过程中也出现了不和谐的因素,那就是驰名商标的异化现象。驰名商标在我国被异化成为“荣誉称号”,成为企业争先追逐的利益目标,这种现象使得我国的驰名商标保护制度背离了该制度建立的初衷,成为了中国特有的现象。 本文首先介绍了驰名商标的由来和含义,从其发展历史来看,驰名商标是现实需要与制度抽象的结合。同时指出驰名商标保护的关键不在于如何定义驰名商标,而在于如何正确,合理,有效地认定驰名商标。之后对驰名商标在我国的发展历程进行了回顾,并对驰名商标的制度本质和法律意义进行了分析,指出驰名商标制度的本质目的是为了保护驰名商标的权利人,制止侵权和不正当竞争,而其法律意义不在于创设一个与“普通商标”相区别的“驰名商标”概念,而是表明那些能够到达驰名标准的商标所享有的一种特别保护,而且它调整着社会各主体之间商标利益关系,不仅是“私权”关系,更衬托着“公益”关系,驰名商标的保护机制是为了是各方的利益得以权衡,最终实现公平正义。 在第二章中,本文对异化的渊源及其含义进行了阐述,并对我国的驰名商标异化现象以及异化的危害进行了简要的分析。在第三章中,对于我国驰名商标异化为何会出现的原因,本文从制度、政治、经济、社会等四个方面进行了详细的分析,以探求驰名商标异化的真正原因。针对驰名商标出现的异化,我国的行政机关和司法机关都相继采取了一些措施,但是未能彻底扭转驰名商标异化的趋势。 最后,本文对于驰名商标异化治理,提出了四个方面的构想和建议,包括树立正确理念,规制政府行为,完善法律制度,规范企业行为,其中最重要的一点是树立正确的驰名商标理念。随着对相应的法律制度等加以改革完善,对政府和企业的行为进行更深入的规范,相信异化的驰名商标保护制度会逐渐回归到驰名商标立法制度原意上来。
[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.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.43;D997.1
本文编号：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.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.43;D997.1
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