论我国商业外观的法律保护
发布时间：2018-11-03 19:29
【摘要】：我国相关法律制度中并没有“商业外观”的概念，其来源于美国的司法实践，并通过判例的形式予以保护。商业外观是商品呈现给消费者的产品的外形或者形状、产品的包装、在产品或其包装上使用的颜色或者设计、所使用的颜色与其他因素的组合，甚至营销技巧等整体性观感。商业外观通常包括产品自身的外观，产品包装的外观及服务装潢的外观、网站外观等四种类型。 随着我国市场经济的迅速发展，无形资产的保护问题受到越来越多的关注，人们对商业外观的保护意识日益增强。备受瞩目的“王老吉”商标使用权案于2012年5月经中国国际经济贸易委员会确认，广药集团收回了“王老吉”注册商标的使用权，，但广药集团与加多宝公司就“红罐”包装一案却进入了旷日持久的诉讼当中。2013年5月15日，广药集团、加多宝公司就王老吉、加多宝红罐外包装装潢权进行了相互诉讼，经最高人民法院指定，由广东省高级人民法院开庭审理，其审判结果将决定红罐凉茶外包装归属权。此案涉及的案价之大，属国内罕见，被媒体称为“中国包装装潢第一案”。然而该案至今没有审判结果。 理论界对红罐包装归属有不同看法。以中国社会科学院知识产权中心主任李明德、西南政法大学知识产权学院教授张玉敏等为代表的多位法律界专家，认为知名商品王老吉凉茶特有的红罐、红瓶包装装潢权，应属于广药集团；然而以北京大学国际知识产权研究中心主任郑胜利为代表的学者，认为红罐是加多宝设计并最先使用，那么红罐显然应该归属加多宝。 本文试图以王老吉与加多宝“红罐”之争诉讼案为切入点，对商业外观的法律保护进行研究，运用比较法、价值分析法，通过研究借鉴美国、德国等国家商业外观的保护，结合知识产权国际条约相关内容，得出对于商业外观侵权判定的原则，以“混淆可能性”作为侵权判定原则，及在其判定混淆可能性过程中加以参酌的因素。同时提出在保护商业外观过程中应当遵循的“非功能性”要求。我国现有相关法律制度基本上对大多数类型的商业外观予以保护，同时也看到现有保护方面存在的缺陷，提出了笔者的建议。
[Abstract]:There is no concept of "commercial appearance" in the relevant legal system of our country, which comes from the judicial practice of the United States and is protected by the form of case law. Commercial appearance is the appearance or shape of the product presented to the consumer, the packaging of the product, the color or design used in the product or its packaging, the combination of the color used with other factors, and even the holistic perception of the marketing technique. The commercial appearance usually includes the appearance of the product itself, the appearance of the product package and the appearance of the service decoration, and the appearance of the website. With the rapid development of market economy in China, more and more attention has been paid to the protection of intangible assets. The high-profile "Wang Laoji" trademark use right case was confirmed by the China International Economic and Trade Commission in May 2012 that Guang Yao Group had taken back the right to use the registered trademark of "Wang Laoji". On May 15, 2013, Guang Yao Group and Gadobo Co., Ltd. entered into a protracted lawsuit over the right of Wang Laoji, Gadobo Red jar to package and decorate the outer packaging of the red jar, and on May 15, 2013, Guang Yao Group and Gadobo Co., Ltd., took part in a mutual lawsuit against each other over the right to package and decorate the outer packaging of the red jar. Appointed by the Supreme people's Court and heard by the Guangdong Provincial higher people's Court, the result of the trial will determine the ownership of the outer packaging of the red pot of herbal tea. The case involved a large price, is rare in China, known by the media as "the first case of packaging and decoration in China." However, the trial has so far been inconclusive. The theory circle has different view to the red can packing attribution. Many legal experts, such as Li Mingde, director of the intellectual property Center of the Chinese Academy of Social Sciences, and Zhang Yumin, a professor at the intellectual property School of Southwest University of political Science and Law, held that the famous commodity Wang Laoji's unique red jar and red bottle packaging and decorating rights are unique to Wang Laoji's herbal tea. Belong to Guang Yao Group; However, Zheng Shengli, director of the International intellectual property Research Center of Peking University, believes that the red pot is the first to be designed and used by Kadobo, so the red pot should obviously belong to Kadobo. This paper attempts to study the legal protection of the commercial appearance with Wang Laoji and Garduobo's "Red jar" lawsuit as the starting point. By using comparative law and value analysis method, we can learn from the protection of the commercial appearance of the United States, Germany and other countries. Combined with the relevant contents of international treaties on intellectual property rights, this paper draws the principle of judging the infringement of commercial appearance, taking the possibility of confusion as the principle of judgment of infringement, and the factors that should be taken into account in the process of judging the possibility of confusion. At the same time, the non-functional requirements should be followed in the process of protecting commercial appearance. The existing relevant legal system of our country basically protects most types of commercial appearance, at the same time, it also sees the defects of the existing protection, and puts forward the author's suggestion.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.4;D922.294
本文编号：2308767
[Abstract]:There is no concept of "commercial appearance" in the relevant legal system of our country, which comes from the judicial practice of the United States and is protected by the form of case law. Commercial appearance is the appearance or shape of the product presented to the consumer, the packaging of the product, the color or design used in the product or its packaging, the combination of the color used with other factors, and even the holistic perception of the marketing technique. The commercial appearance usually includes the appearance of the product itself, the appearance of the product package and the appearance of the service decoration, and the appearance of the website. With the rapid development of market economy in China, more and more attention has been paid to the protection of intangible assets. The high-profile "Wang Laoji" trademark use right case was confirmed by the China International Economic and Trade Commission in May 2012 that Guang Yao Group had taken back the right to use the registered trademark of "Wang Laoji". On May 15, 2013, Guang Yao Group and Gadobo Co., Ltd. entered into a protracted lawsuit over the right of Wang Laoji, Gadobo Red jar to package and decorate the outer packaging of the red jar, and on May 15, 2013, Guang Yao Group and Gadobo Co., Ltd., took part in a mutual lawsuit against each other over the right to package and decorate the outer packaging of the red jar. Appointed by the Supreme people's Court and heard by the Guangdong Provincial higher people's Court, the result of the trial will determine the ownership of the outer packaging of the red pot of herbal tea. The case involved a large price, is rare in China, known by the media as "the first case of packaging and decoration in China." However, the trial has so far been inconclusive. The theory circle has different view to the red can packing attribution. Many legal experts, such as Li Mingde, director of the intellectual property Center of the Chinese Academy of Social Sciences, and Zhang Yumin, a professor at the intellectual property School of Southwest University of political Science and Law, held that the famous commodity Wang Laoji's unique red jar and red bottle packaging and decorating rights are unique to Wang Laoji's herbal tea. Belong to Guang Yao Group; However, Zheng Shengli, director of the International intellectual property Research Center of Peking University, believes that the red pot is the first to be designed and used by Kadobo, so the red pot should obviously belong to Kadobo. This paper attempts to study the legal protection of the commercial appearance with Wang Laoji and Garduobo's "Red jar" lawsuit as the starting point. By using comparative law and value analysis method, we can learn from the protection of the commercial appearance of the United States, Germany and other countries. Combined with the relevant contents of international treaties on intellectual property rights, this paper draws the principle of judging the infringement of commercial appearance, taking the possibility of confusion as the principle of judgment of infringement, and the factors that should be taken into account in the process of judging the possibility of confusion. At the same time, the non-functional requirements should be followed in the process of protecting commercial appearance. The existing relevant legal system of our country basically protects most types of commercial appearance, at the same time, it also sees the defects of the existing protection, and puts forward the author's suggestion.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.4;D922.294
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1 魏衍亮;用商标法保护商业外观[J];中华商标;2005年03期
相关博士学位论文 前1条
1 蒋虹;论商号及其法律保护[D];华东政法大学;2011年
本文编号：2308767
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