时尚产业单一颜色商标的可保护性研究
发布时间：2018-08-01 13:53
【摘要】：随着经济全球化、市场竞争的日益激烈,品牌的重要性与日俱增。最新的-项调查显示,颜色对消费者有着重要的意义,它能使消费者更迅速地辨别他们所熟知的品牌,有许多消费者甚至是基于颜色对商品来源进行判断。目前,有许多商家开始通过新颖商标来树立品牌形象,将单一颜色商标等多种非传统商标作为新型营销手段。经过长期使用和宣传,这些商标与商家的联系己然深入人心。单一颜色商标被颇多运用在追求美学性与新颖性效果的时尚产业中。 单一颜色商标是否应该受到法律保护在国内外学术界有所争议,但大多发达国家在立法和司法中确立了单一颜色商标的可注册性。许多先前立法中不允许注册单一颜色商标的国家,如日本、韩国、西班牙,也通过商标法修正案的形式确立了单一颜色商标的可注册性,可见保护单一颜色商标的国际化趋势。 由于颜色是时尚设计的基础元素,在Louboutin案中美国司法界对时尚企业是否能将单一颜色注册为商标提出了质疑。那么,究竟是否应允许时尚企业注册单一颜色商标?商标法对单一颜色商标的保护是否应延伸到时尚产业?笔者从Louboutin案一审判决的质疑中得到启发,在本文中分析Louboutin案始末,总结案例经验,围绕时尚产业单一颜色商标的可保护性问题进行分析和论述。 笔者认为,虽然颜色在时尚产业中有着举足轻重的作用,但这不应成为阻碍颜色被注册为商标的原因。只要满足“获得显著性”和“非功能性”要件,时尚产业单一颜色商标就应同样受到商标法保护。关于如何完善时尚产业单一颜色商标的保护,笔者认为,而考虑到颜色在时尚产业的特殊性,为了促进时尚产业的健康发展,在司法实践中应对时尚产业单一颜色商标作适当倾斜,具体问题具体分析,宽松适用“功能性否决原则”；为避免保护过度对公平竞争可能造成的影响,应严格限定时尚产业中单一颜色商标的具体使用范围和情形。 拥有巨大潜力的中国时尚产业在未来的发展过程中,不可避免地会遇到像Louboutin案中所讨论的问题。我国现行立法暂不保护单一颜色商标,但我国市场中对保护单一颜色商标的需求已经涌现。随着未来市场的进一步细分,单一颜色商标的出现势必越来越频繁,保护单一颜色商标需求也将与日俱增。在中国保护单一颜色商标可谓是众望所归。本文试图对时尚产业单一颜色商标法律保护相关问题和我国在推进保护过程中遇到的问题进行系统化分析,并通过总结美国经验,提出对策,希望能够对我国单一颜色商标的理论研究和实践有所贡献。 纵观国内外学术领域,至今鲜有国内学者专攻研究时尚产业的知识产权保护问题,也鲜有关于本选题的中文文献。虽然国外学者在这方面的研究相对超前,但国外学者主要从本国法出发,鲜有谈到中国方面的问题及对策。本文的可能创新点主要有： 第一,对时尚产业特性和国内外相关法律保护现状的介绍和分析,特别是对中国方面的现状分析,并提出了中国时尚产业中现实和潜在的法律保护需求。 第二,针对中国的现实情况,分析在中国法框架下保护时尚产业单一颜色商标的可行性和立法建议。 本文论述采取的主要方法是比较分析和案例分析。笔者就国内外在选题问题上的立法和司法实践情况进行比较分析。由于美国立法较为完善且在单一颜色商标保护问题上经验丰富,案例分析的重点主要放在美国司法判例的研究上,作者将总结判例的核心观点,提炼出可借鉴之处。
[Abstract]:As the economic globalization, the increasingly fierce market competition, the importance of brand is increasing. The latest - item survey shows that color is of great significance to consumers. It can make consumers more quickly identify the brand they know, and many consumers are even based on the color of the commodity. A variety of non-traditional trademarks, such as a single color trademark, are used as new marketing means to establish a brand image through new trademarks. After long-term use and publicity, the links between these trademarks and businesses have been deeply rooted in the hearts of the people.
It is controversial whether a single color trademark should be protected by law at home and abroad, but most developed countries have established the registration of a single color trademark in legislation and judicature. Many previous legislation, such as Japan, South Korea, and Spain, which are not allowed to register a single color trademark, are also in the form of an amendment to the trademark law. The registration of a single color trademark has been established, thus protecting the internationalization trend of single color trademark.
As color is the basic element of fashion design, in the Louboutin case, the American judiciary has questioned whether a fashion enterprise can register a single color as a trademark. The question of the case first trial is enlightened. In this paper, we analyze the beginning and end of the Louboutin case, sum up the case experience, and analyze and discuss the problem of the protection of the single color trademark in the fashion industry.
The author believes that although color plays an important role in the fashion industry, it should not be the reason why the color is registered as a trademark. As long as it meets the requirements of "gaining significant" and "non functional", the single color trademark of fashion industry should be protected by the same trademark law. In order to promote the healthy development of fashion industry, the author thinks that, in order to promote the healthy development of fashion industry, we should take a proper inclination of the single color trademark in the fashion industry in judicial practice, specific analysis of specific problems, and loosely apply the principle of "functional veto" in order to avoid excessive protection against fair competition. The specific scope and circumstances of the single color trademark in the fashion industry should be strictly limited.
In the course of future development, China's fashion industry with great potential will inevitably meet the problems discussed in the Louboutin case. The current legislation in China does not protect the single color trademark temporarily, but the demand for the protection of a single color trademark has emerged in our market. With the further segmentation of the future market, a single color trademark is also made. There will be more and more frequent emergence and increasing demand for the protection of single color trademarks. The protection of a single color trademark in China is the most popular. This paper attempts to systematically analyze the problems related to the legal protection of the single color trademark in the fashion industry and the problems encountered in the process of promoting the protection of our country, and through the summary of the American classics. We hope to be able to contribute to the theoretical research and practice of single color trademark in China.
Throughout the academic field at home and abroad, there are few domestic scholars specializing in the study of intellectual property protection in the fashion industry, and there are few Chinese literature about this topic. Although foreign scholars have been relatively advanced in this field, foreign scholars rarely talk about China's problems and countermeasures. The new points are as follows:
First, the introduction and analysis of the characteristics of the fashion industry and related legal protection at home and abroad, especially the analysis of the current situation in China, and the practical and potential legal protection requirements in China's fashion industry.
Secondly, in view of the reality of China, this paper analyzes the feasibility and legislative suggestions of protecting the single color trademark of fashion industry under the framework of Chinese law.
The main methods used in this paper are comparative analysis and case analysis. The author makes a comparative analysis on the legislation and judicial practice on the topic of selection at home and abroad. Because of the more perfect legislation in the United States and rich experience in the protection of the single color trademark, the focus of the case analysis is mainly on the study of the judicial precedents of the United States. They will summarize the core points of the case and extract some useful points.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D997.1
本文编号：2157788
[Abstract]:As the economic globalization, the increasingly fierce market competition, the importance of brand is increasing. The latest - item survey shows that color is of great significance to consumers. It can make consumers more quickly identify the brand they know, and many consumers are even based on the color of the commodity. A variety of non-traditional trademarks, such as a single color trademark, are used as new marketing means to establish a brand image through new trademarks. After long-term use and publicity, the links between these trademarks and businesses have been deeply rooted in the hearts of the people.
It is controversial whether a single color trademark should be protected by law at home and abroad, but most developed countries have established the registration of a single color trademark in legislation and judicature. Many previous legislation, such as Japan, South Korea, and Spain, which are not allowed to register a single color trademark, are also in the form of an amendment to the trademark law. The registration of a single color trademark has been established, thus protecting the internationalization trend of single color trademark.
As color is the basic element of fashion design, in the Louboutin case, the American judiciary has questioned whether a fashion enterprise can register a single color as a trademark. The question of the case first trial is enlightened. In this paper, we analyze the beginning and end of the Louboutin case, sum up the case experience, and analyze and discuss the problem of the protection of the single color trademark in the fashion industry.
The author believes that although color plays an important role in the fashion industry, it should not be the reason why the color is registered as a trademark. As long as it meets the requirements of "gaining significant" and "non functional", the single color trademark of fashion industry should be protected by the same trademark law. In order to promote the healthy development of fashion industry, the author thinks that, in order to promote the healthy development of fashion industry, we should take a proper inclination of the single color trademark in the fashion industry in judicial practice, specific analysis of specific problems, and loosely apply the principle of "functional veto" in order to avoid excessive protection against fair competition. The specific scope and circumstances of the single color trademark in the fashion industry should be strictly limited.
In the course of future development, China's fashion industry with great potential will inevitably meet the problems discussed in the Louboutin case. The current legislation in China does not protect the single color trademark temporarily, but the demand for the protection of a single color trademark has emerged in our market. With the further segmentation of the future market, a single color trademark is also made. There will be more and more frequent emergence and increasing demand for the protection of single color trademarks. The protection of a single color trademark in China is the most popular. This paper attempts to systematically analyze the problems related to the legal protection of the single color trademark in the fashion industry and the problems encountered in the process of promoting the protection of our country, and through the summary of the American classics. We hope to be able to contribute to the theoretical research and practice of single color trademark in China.
Throughout the academic field at home and abroad, there are few domestic scholars specializing in the study of intellectual property protection in the fashion industry, and there are few Chinese literature about this topic. Although foreign scholars have been relatively advanced in this field, foreign scholars rarely talk about China's problems and countermeasures. The new points are as follows:
First, the introduction and analysis of the characteristics of the fashion industry and related legal protection at home and abroad, especially the analysis of the current situation in China, and the practical and potential legal protection requirements in China's fashion industry.
Secondly, in view of the reality of China, this paper analyzes the feasibility and legislative suggestions of protecting the single color trademark of fashion industry under the framework of Chinese law.
The main methods used in this paper are comparative analysis and case analysis. The author makes a comparative analysis on the legislation and judicial practice on the topic of selection at home and abroad. Because of the more perfect legislation in the United States and rich experience in the protection of the single color trademark, the focus of the case analysis is mainly on the study of the judicial precedents of the United States. They will summarize the core points of the case and extract some useful points.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D997.1
【参考文献】
相关期刊论文 前9条
1 王笑冰;从颜色商标保护看美国商标法的“第二含义”[J];中华商标;2000年08期
2 李长宝;单一颜色商标的可注册性[J];中华商标;2005年10期
3 董葆霖;常艳丽;;单一颜色商标在欧洲[J];中华商标;2006年02期
4 杜颖;;单一颜色商标注册问题研究——以美国法为中心的比较分析[J];法学评论;2009年01期
5 董传传;;从Louboutin案看美国单一颜色商标在时装领域的保护[J];中华商标;2013年07期
6 郭建广;;美国单一颜色商标制度简介[J];中华商标;2012年12期
7 曾如钰;;颜色商标的注册问题分析——以近年美国颜色商标保护案例为切入点[J];经济视角(中旬);2011年05期
8 杜颖;;商标淡化理论及其应用[J];法学研究;2007年06期
9 湛茜;;单一颜色商标的注册问题研究[J];暨南学报(哲学社会科学版);2012年10期
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