移动互联网APP标志的商标法律关系问题研究
发布时间：2019-05-19 10:08
【摘要】："互联网+"的深度发展衍生出移动互联网APP运营产业的繁荣和活跃。APP应用程序与APP标志的合理分离使得对于APP标志的规制排除了专利法和著作权法的保护,引发对APP标志的法律属性的争论。由于APP标志与其他标识之间既有共同之处又有区别点,是否具有将其纳入商标法调整的充分证据众说纷纭。再加之移动互联网变化快,APP标志侵权主体难以确定,商标侵权的认定和免责条件适用难度加大。移动互联网发展过程中,当事人将APP标志侵权行为诉诸商标法律关系调整的诉求屡有发生,这与APP标志侵权问题的现有规制有一定的关系。本文试图从近几年移动互联网APP标志的侵权现象入手进行分析,比较APP标志与其他商业标志之间的区别点,厘清APP标志纳入商标法调整的合理性。其次,从APP标志上传者和APP标志第三方平台提供者两个可能侵权主体角度出发评价其行为在商标法律关系中的定性和突破。最后,结合法律条文和司法实践就APP标志所涉商标侵权行为规制提出建议。本文一共分为五个部分。第一部分首先提出将APP应用程序与APP标志相分离,明确论文将探讨的对象。其次从APP标志的发展情况得出APP标志具有数量众多、发展水平不高,生命周期较短的特征,引出移动互联网领域APP标志侵权行为频发的原因。最后描述目前关于APP标志侵权事件,当事人将其诉诸商标法调整的现实,将APP标志界定在商标法律关系范畴。第二部分承接上文中"APP标志属于商标法律关系调整范围"的论点,论证即使在新环境下APP标志呈现不同于传统商业标志的形态和特征,但其显著识别部分的商标属性决定APP标志确可归于商标法保护。此外,比照APP标志与驰名商标、域名、特殊标志的区别点,为下文讨论如何适用商标法相关规定埋下伏笔。第三部分主要结合目前商标法的相关规定,从APP标志上传者上传APP标志是否属于商标性使用分析得出其行为性质,从而认定APP标志与传统商业标志一样,具有区分APP来源的作用,一旦造成混淆,可适用现有商标法规定判定其行为构成商标侵权行为。此外,结合移动互联网自身特征,侧重于对反向混淆现象的关注。同时结合相关案例进行佐证。第四部分主要分析另一个可能侵权主体—APP标志第三方服务提供商的商标侵权认定标准与免责条件的适用。同样出于现实需要,在认定APP标志第三方服务提供商侵权时,根据其所具有的实际控制能力,提高对事前的审查和注意义务以及事后的预防义务的更高要求。在免责情形中,限制条款适用范围愈加限缩,"避风港"规则的适用更加严格,以平衡受损害方与APP标志服务提供商之间的利益关系。同时结合实际案例进行阐述。第五部分在前四部分论述的基础上,总结司法实践经验,进一步指出商标法、反不正当竞争法(修订草案)在可操作性方面的提高和侧重之处,促进制度设计更加完善和平衡。
[Abstract]:The deep development of "Internet" has spawned the prosperity and activity of APP operation industry in mobile Internet. The reasonable separation of app application program and APP logo makes the regulation of APP logo exclude the protection of patent law and copyright law. Lead to a debate about the legal attributes of the APP logo. Because there are both similarities and differences between APP logo and other marks, there are different opinions about whether there is sufficient evidence to incorporate it into trademark law adjustment. In addition, the rapid change of mobile Internet makes it difficult to determine the subject of APP logo infringement, and the identification of trademark infringement and the application of exemption conditions are more difficult. In the process of the development of mobile Internet, the demand of the parties to resort to the adjustment of trademark legal relationship for APP logo infringement has occurred repeatedly, which has something to do with the existing regulation of APP logo infringement. This paper attempts to analyze the infringement phenomenon of APP logo in mobile Internet in recent years, compare the differences between APP logo and other commercial marks, and clarify the rationality of APP logo being included in trademark law adjustment. Secondly, the qualitative and breakthrough of APP logo uploading and APP logo third party platform provider in trademark legal relationship are evaluated from the point of view of two possible infringement subjects. Finally, combined with legal provisions and judicial practice, this paper puts forward some suggestions on the regulation of trademark infringement related to APP logo. This paper is divided into five parts. In the first part, we first propose to separate APP applications from APP flags, and identify the objects to be discussed in this paper. Secondly, from the development of APP logo, it is concluded that APP logo has the characteristics of large number, low development level and short life cycle, which leads to the frequent infringement of APP logo in the field of mobile Internet. Finally, it describes the reality that the parties resort to the adjustment of trademark law about the infringement of APP logo, and defines the APP logo in the category of trademark legal relationship. The second part carries on the argument that "APP logo belongs to the adjustment scope of trademark legal relationship" above, and demonstrates that even in the new environment, APP logo is different from the traditional commercial logo in form and characteristics. However, the trademark attributes of the significant identification part determine that the APP logo can indeed be attributed to the protection of trademark law. In addition, the differences between APP logo and well-known trademark, domain name and special mark lay the groundwork for the following discussion on how to apply the relevant provisions of trademark law. The third part mainly combines the relevant provisions of the current trademark law, and analyzes whether the APP logo uploads the APP logo to the trademark use, so as to conclude that the APP logo is the same as the traditional commercial logo. It has the function of distinguishing the source of APP. Once confusion is caused, the existing trademark law can be applied to determine that its behavior constitutes trademark infringement. In addition, combined with the characteristics of the mobile Internet, focus on the reverse confusion phenomenon. At the same time, combined with the relevant cases to support. The fourth part mainly analyzes the application of trademark infringement identification standard and exemption condition of APP logo third party service provider, which is another possible infringement subject. Also out of practical needs, when recognizing the infringement of the third party service provider marked by APP, according to its actual control ability, it improves the higher requirements for the prior examination and duty of care and the obligation of prevention after the event. In the case of exemption, the scope of application of the restriction clause is more and more limited, and the application of the "safe haven" rule is more strict in order to balance the interest relationship between the injured party and the APP marking service provider. At the same time, combined with the actual case to elaborate. The fifth part summarizes the judicial practice experience on the basis of the first four parts, and further points out the improvement and emphasis on the maneuverability of the trademark law and the anti-unfair competition law (revised draft), so as to promote the system design to be more perfect and balanced.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.43
本文编号：2480633
[Abstract]:The deep development of "Internet" has spawned the prosperity and activity of APP operation industry in mobile Internet. The reasonable separation of app application program and APP logo makes the regulation of APP logo exclude the protection of patent law and copyright law. Lead to a debate about the legal attributes of the APP logo. Because there are both similarities and differences between APP logo and other marks, there are different opinions about whether there is sufficient evidence to incorporate it into trademark law adjustment. In addition, the rapid change of mobile Internet makes it difficult to determine the subject of APP logo infringement, and the identification of trademark infringement and the application of exemption conditions are more difficult. In the process of the development of mobile Internet, the demand of the parties to resort to the adjustment of trademark legal relationship for APP logo infringement has occurred repeatedly, which has something to do with the existing regulation of APP logo infringement. This paper attempts to analyze the infringement phenomenon of APP logo in mobile Internet in recent years, compare the differences between APP logo and other commercial marks, and clarify the rationality of APP logo being included in trademark law adjustment. Secondly, the qualitative and breakthrough of APP logo uploading and APP logo third party platform provider in trademark legal relationship are evaluated from the point of view of two possible infringement subjects. Finally, combined with legal provisions and judicial practice, this paper puts forward some suggestions on the regulation of trademark infringement related to APP logo. This paper is divided into five parts. In the first part, we first propose to separate APP applications from APP flags, and identify the objects to be discussed in this paper. Secondly, from the development of APP logo, it is concluded that APP logo has the characteristics of large number, low development level and short life cycle, which leads to the frequent infringement of APP logo in the field of mobile Internet. Finally, it describes the reality that the parties resort to the adjustment of trademark law about the infringement of APP logo, and defines the APP logo in the category of trademark legal relationship. The second part carries on the argument that "APP logo belongs to the adjustment scope of trademark legal relationship" above, and demonstrates that even in the new environment, APP logo is different from the traditional commercial logo in form and characteristics. However, the trademark attributes of the significant identification part determine that the APP logo can indeed be attributed to the protection of trademark law. In addition, the differences between APP logo and well-known trademark, domain name and special mark lay the groundwork for the following discussion on how to apply the relevant provisions of trademark law. The third part mainly combines the relevant provisions of the current trademark law, and analyzes whether the APP logo uploads the APP logo to the trademark use, so as to conclude that the APP logo is the same as the traditional commercial logo. It has the function of distinguishing the source of APP. Once confusion is caused, the existing trademark law can be applied to determine that its behavior constitutes trademark infringement. In addition, combined with the characteristics of the mobile Internet, focus on the reverse confusion phenomenon. At the same time, combined with the relevant cases to support. The fourth part mainly analyzes the application of trademark infringement identification standard and exemption condition of APP logo third party service provider, which is another possible infringement subject. Also out of practical needs, when recognizing the infringement of the third party service provider marked by APP, according to its actual control ability, it improves the higher requirements for the prior examination and duty of care and the obligation of prevention after the event. In the case of exemption, the scope of application of the restriction clause is more and more limited, and the application of the "safe haven" rule is more strict in order to balance the interest relationship between the injured party and the APP marking service provider. At the same time, combined with the actual case to elaborate. The fifth part summarizes the judicial practice experience on the basis of the first four parts, and further points out the improvement and emphasis on the maneuverability of the trademark law and the anti-unfair competition law (revised draft), so as to promote the system design to be more perfect and balanced.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.43
【参考文献】
相关期刊论文 前1条
1 刘书琼;;如何认定《商标法》第31条中的商标“使用”——兼评“陆虎”商标纠纷案[J];中华商标;2011年08期
，本文编号：2480633
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