商标使用侵犯他人在先权利的问题研究
发布时间：2018-10-19 12:08
【摘要】：商标权与在先权利之间的冲突一直是商标司法实践领域内长期探讨的问题。特别是在商标注册五年之后，根据《商标法》的相关规定，在先权利人已经无法提起商标撤销申请。在这种情况下，在先权利人是否还能通过民事诉讼的程序获得停止侵权或损失赔偿等民事救济，以及如何获得此类民事救济？ 就这一问题，我国的目前立法层面存在缺失，导致最高人民法院和其他司法执法机关力求在现有法律框架内达到利益平衡公平公正的效果，但却造成了司法解释和司法操作中矛盾重重的局面。法律方面，《商标法》只是规定了侵犯他人在先权利的注册商标的注册规则，而《反不正当竞争法》等法律则只是原则性的规定了使用某些他人享有权利的标识属于假冒行为，应当受到禁止和处罚，但没有涉及商标权和此类标识权发生冲突时的民事救济规则。对于这一缺失，司法解释和司法实践对于在先权利人的民事救济的观点逐步从行政撤销程序优先于民事救济的观点，发展为这种的民事救济独立的观点。然后目前，司法解释层面并没有完整和统一的规定，最新的《关于当前经济形势下知识产权审判服务大局若干问题的意见》对于商标注册五年后在先权利人寻求民事救济方面，不合理地区别处理了不同的在先权利，同时在赋予在先权利人民事救济的同事，剥夺了在先权利的排他性，这种缺乏法律逻辑的实践观点背后的根本原因，是法律明文规定的缺失。 从法律属性的角度而言，使用注册商标侵犯他人在先权利的本质是权利之间的冲突。因此，在解决这一问题时，应当充分考虑权利冲突解决原则的适用，包括尊重在先权利原则、保护公共利益原则和利益平衡原则——一方面，法律应当给在先权利提供保护，但另一方面，这种保护并不是没有期限和范围的，为了防止“在权利上沉睡”的情况，也为了保护消费者对已经长时间使用的商标所产生的信赖利益，应当对在先权利人民事救济的期限作出规定。从这一点上，可以借鉴《保护工业产权巴黎公约》之《关于保护驰名商标的规定的联合建议》，，以及欧洲商标指令和商标条例的规定，将商标撤销的五年期限同时规定为在先权利人进行民事救济的期限。
[Abstract]:The conflict between trademark right and prior right has long been discussed in the field of trademark judicial practice. Especially after five years of trademark registration, according to the relevant provisions of the Trademark Law, the prior right holder has been unable to file an application for trademark revocation. In this case, is the prior right holder able to obtain civil remedies, such as cessation of infringement or damages, through civil proceedings, and how to obtain such civil remedies? With regard to this issue, there is a lack of legislation at present in our country, which has led the Supreme people's Court and other judicial law enforcement agencies to strive to achieve a fair and just balance of interests within the existing legal framework. However, the judicial interpretation and judicial operation of the situation is full of contradictions. In terms of law, the Trademark Law only prescribes the rules for the registration of registered trademarks that infringe upon the rights of others in the first place, while laws such as the Anti-unfair Competition Law only provide in principle that the use of marks of rights enjoyed by certain others is an act of counterfeiting. It should be prohibited and punished, but does not deal with the civil remedy rules in the event of a conflict between trademark rights and such marking rights. For this deficiency, the viewpoint of judicial interpretation and judicial practice on the civil relief of the prior right holder gradually develops from the point of view that the administrative revocation procedure takes precedence over the civil relief, and develops into the independent viewpoint of the civil relief. Then, at present, there are no complete and unified provisions on judicial interpretation. The latest opinion on several issues of intellectual property rights trial serving the overall situation under the current economic situation, for trademark registration five years after seeking civil remedies for the prior right holder, At the same time, in giving civil relief to the former right holder, he deprived the exclusivity of the prior right, which is the fundamental reason behind the lack of legal logic in practice. It is the absence of legal provisions. From the point of view of legal attribute, the essence of infringing the prior rights of others by using registered trademark is the conflict between rights. Therefore, in addressing this issue, due consideration should be given to the application of the principle of conflict of rights resolution, including respect for the principle of prior rights, the principle of protection of the public interest and the principle of balance of interests-on the one hand, the law should provide protection for prior rights, The time limit for civil relief of the prior right holder shall be stipulated. In this regard, reference may be made to the Joint recommendation on provisions for the Protection of Well-known trademarks of the Paris Convention for the Protection of Industrial property, as well as to the provisions of the European Trademark Directive and regulations, The five-year period of trademark revocation is also defined as the time limit of civil relief for the prior right holder.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.43
本文编号：2281067
[Abstract]:The conflict between trademark right and prior right has long been discussed in the field of trademark judicial practice. Especially after five years of trademark registration, according to the relevant provisions of the Trademark Law, the prior right holder has been unable to file an application for trademark revocation. In this case, is the prior right holder able to obtain civil remedies, such as cessation of infringement or damages, through civil proceedings, and how to obtain such civil remedies? With regard to this issue, there is a lack of legislation at present in our country, which has led the Supreme people's Court and other judicial law enforcement agencies to strive to achieve a fair and just balance of interests within the existing legal framework. However, the judicial interpretation and judicial operation of the situation is full of contradictions. In terms of law, the Trademark Law only prescribes the rules for the registration of registered trademarks that infringe upon the rights of others in the first place, while laws such as the Anti-unfair Competition Law only provide in principle that the use of marks of rights enjoyed by certain others is an act of counterfeiting. It should be prohibited and punished, but does not deal with the civil remedy rules in the event of a conflict between trademark rights and such marking rights. For this deficiency, the viewpoint of judicial interpretation and judicial practice on the civil relief of the prior right holder gradually develops from the point of view that the administrative revocation procedure takes precedence over the civil relief, and develops into the independent viewpoint of the civil relief. Then, at present, there are no complete and unified provisions on judicial interpretation. The latest opinion on several issues of intellectual property rights trial serving the overall situation under the current economic situation, for trademark registration five years after seeking civil remedies for the prior right holder, At the same time, in giving civil relief to the former right holder, he deprived the exclusivity of the prior right, which is the fundamental reason behind the lack of legal logic in practice. It is the absence of legal provisions. From the point of view of legal attribute, the essence of infringing the prior rights of others by using registered trademark is the conflict between rights. Therefore, in addressing this issue, due consideration should be given to the application of the principle of conflict of rights resolution, including respect for the principle of prior rights, the principle of protection of the public interest and the principle of balance of interests-on the one hand, the law should provide protection for prior rights, The time limit for civil relief of the prior right holder shall be stipulated. In this regard, reference may be made to the Joint recommendation on provisions for the Protection of Well-known trademarks of the Paris Convention for the Protection of Industrial property, as well as to the provisions of the European Trademark Directive and regulations, The five-year period of trademark revocation is also defined as the time limit of civil relief for the prior right holder.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.43
【参考文献】
相关期刊论文 前1条
1 冯晓青,杨利华;知识产权权利冲突及其解决原则[J];法学论坛;2001年03期
本文编号：2281067
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