商标权与在先著作权的冲突研究
发布时间：2018-11-15 13:03
【摘要】：如今的世界是知识经济时代,新兴领域科技发展对知识产权领域带来了极大的冲击,不同的知识产权之间的矛盾越来越突出,尤其是商标权与在先著作权之间的纠纷,严重损害了社会利益。本文在深入分析商标权与在先著作权利冲突的基础上,阐述了商标权与在先著作权权利冲突的基本理论,总结了一些解决权利冲突的原则,并且提出立法以及司法建议,希望给商标权与在先著作权冲突的解决提供一定的参考。 作者首先分析了商标权与在先著作权的理论含义及特点,在此基础上将商标权与在先著作权权利冲突界定为两个权利主客体之间出现的矛盾的法律状态和主体利益间的抵触关系。商标权与在先著作权权利冲突类型的种类繁多,按照客体的性质划分,主要包括了文字商标与文字作品、图形商标与平面美术和摄影作品、商标与虚拟角色名称、立体商标与建筑和雕塑作品以及声音商标与音乐作品等常见类型。产生商标权与在先著作权发生冲突的原因主要包含了内在原因,制度原因和其他原因三方面的内容。 我国法律在立法方面存在的问题首先是未明确规定禁止将与他人在先权利冲突的标记作为商标使用或注册,其次是到目前为止尚未确定在先著作权的范围,最后是《商标法》中关于申请登记注册程序的规定中没有区分商标注册人的善恶意。在司法实践中存在的问题则是司法机关过于绝对地保护在先著作权,对于在后的商标权人有失公平,而且造成社会资源的浪费；我国采用的是分散型单行立法体例,关于商标的检索审查机制尚不完备也是有待提高的地方。利用比较分析法对域外有关商标权与在先著作权的相关法律法规和条约规定进行了梳理,结果表明域外立法对商标权与在先著作权权利冲突的解决方法主要采用的是禁止使用、不予注册和予以撤销三种处理方式,解决途径又可以分为事前救济和事后救济两方面。 针对上面分析得出的问题,笔者针对我国法律存在的问题提出了若干解决原则并给出了一些立法和司法方面的建议,在立法方面主要是确定在先著作权的权力范围和在立法层面上区分商标注册人的善恶意。而在司法实践中则需要建立补偿制度并且通过行政途径来加以解决,当然也可以采用诸如利益共同化和加强有关部门的合作等方式来提高冲突的解决能力。
[Abstract]:Today's world is an era of knowledge economy. The development of science and technology in new fields has brought great impact to the field of intellectual property. The contradictions between different intellectual property rights are becoming more and more prominent, especially the disputes between trademark rights and prior copyright. It has seriously damaged the interests of society. On the basis of deeply analyzing the conflict between trademark right and prior copyright interest, this paper expounds the basic theory of the conflict between trademark right and prior copyright right, summarizes some principles to resolve the conflict of rights, and puts forward some legislative and judicial suggestions. The author hopes to provide some reference for the solution of the conflict between trademark right and prior copyright. The author first analyzes the theoretical meaning and characteristics of trademark right and prior copyright. On this basis, the conflict between trademark right and prior copyright right is defined as the conflict between the subject and object of the two rights and the conflict between the interests of the subject and the subject. There are many types of conflicts between trademark rights and prior copyright rights, which are divided according to the nature of the object, including characters and works, graphic marks and graphic art and photographic works, trademarks and fictitious role names. Three-dimensional trademarks and architectural and sculpture works as well as sound trademarks and musical works and other common types. The causes of conflicts between trademark rights and prior copyright mainly include three aspects: internal reasons, institutional reasons and other reasons. The problems in the legislation of our country are, first, the lack of explicit provisions prohibiting the use or registration of marks that conflict with the prior rights of others as trademarks, and secondly, the scope of prior copyright has not been determined so far. Finally, the provisions of Trademark Law on registration procedures do not distinguish between the good and malicious of the trademark registrant. The problem in the judicial practice is that the judicial organ is too absolute to protect the prior copyright, which is unfair to the latter trademark owner, and causes the waste of social resources. In our country, the single-line legislation method is used, and the examination mechanism of trademark retrieval is not perfect and needs to be improved. The comparative analysis method is used to sort out the relevant laws and regulations and treaty provisions about trademark right and prior copyright. The result shows that the main way to solve the conflict between trademark right and prior copyright right is to prohibit the use of the trademark right. The solution can be divided into two aspects: ex ante relief and ex post relief. In view of the problems analyzed above, the author puts forward some principles to solve the problems existing in our country's laws, and gives some suggestions on legislation and judicature. In the aspect of legislation, it is mainly to determine the scope of power of prior copyright and to distinguish the good and malice of trademark registrants. In judicial practice, it is necessary to establish a compensation system and solve it through administrative means. Of course, we can also improve the ability of conflict resolution by such means as co-interest and strengthening the cooperation of relevant departments.
【学位授予单位】：西南交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.43;D923.41
本文编号：2333384
[Abstract]:Today's world is an era of knowledge economy. The development of science and technology in new fields has brought great impact to the field of intellectual property. The contradictions between different intellectual property rights are becoming more and more prominent, especially the disputes between trademark rights and prior copyright. It has seriously damaged the interests of society. On the basis of deeply analyzing the conflict between trademark right and prior copyright interest, this paper expounds the basic theory of the conflict between trademark right and prior copyright right, summarizes some principles to resolve the conflict of rights, and puts forward some legislative and judicial suggestions. The author hopes to provide some reference for the solution of the conflict between trademark right and prior copyright. The author first analyzes the theoretical meaning and characteristics of trademark right and prior copyright. On this basis, the conflict between trademark right and prior copyright right is defined as the conflict between the subject and object of the two rights and the conflict between the interests of the subject and the subject. There are many types of conflicts between trademark rights and prior copyright rights, which are divided according to the nature of the object, including characters and works, graphic marks and graphic art and photographic works, trademarks and fictitious role names. Three-dimensional trademarks and architectural and sculpture works as well as sound trademarks and musical works and other common types. The causes of conflicts between trademark rights and prior copyright mainly include three aspects: internal reasons, institutional reasons and other reasons. The problems in the legislation of our country are, first, the lack of explicit provisions prohibiting the use or registration of marks that conflict with the prior rights of others as trademarks, and secondly, the scope of prior copyright has not been determined so far. Finally, the provisions of Trademark Law on registration procedures do not distinguish between the good and malicious of the trademark registrant. The problem in the judicial practice is that the judicial organ is too absolute to protect the prior copyright, which is unfair to the latter trademark owner, and causes the waste of social resources. In our country, the single-line legislation method is used, and the examination mechanism of trademark retrieval is not perfect and needs to be improved. The comparative analysis method is used to sort out the relevant laws and regulations and treaty provisions about trademark right and prior copyright. The result shows that the main way to solve the conflict between trademark right and prior copyright right is to prohibit the use of the trademark right. The solution can be divided into two aspects: ex ante relief and ex post relief. In view of the problems analyzed above, the author puts forward some principles to solve the problems existing in our country's laws, and gives some suggestions on legislation and judicature. In the aspect of legislation, it is mainly to determine the scope of power of prior copyright and to distinguish the good and malice of trademark registrants. In judicial practice, it is necessary to establish a compensation system and solve it through administrative means. Of course, we can also improve the ability of conflict resolution by such means as co-interest and strengthening the cooperation of relevant departments.
【学位授予单位】：西南交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.43;D923.41
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