烟草“朴素包装”商标问题研究
发布时间：2018-11-26 18:16
【摘要】：烟草朴素包装是当今社会的一项控烟新政策，其核心是要求烟草产品以朴素统一的形象展示，，去除包装上华丽的装饰性、美化性元素。2011年，澳大利亚出台了一系列法规强制推行烟草朴素包装，成为世界上第一个利用朴素包装立法控烟的国家。澳大利亚的规定刚一出台，就立刻引来该国烟草业的强烈反对：他们认为朴素包装的相关法规限制了烟草商标权利人权利行使的自由，侵犯了商标权，甚至有烟草公司请求法院判令相关立法无效。本文根据上述情况，以烟草朴素包装为研究对象，分析其中存在的商标问题。除导言和结语外，本文共分三章： 第一章首先介绍了烟草朴素包装的基本概念及其对烟草产品的影响，同时，概述各国针对烟草朴素包装的立法现状，并重点介绍了澳大利亚相关法规和司法实践状况； 第二章从烟草朴素包装对商标功能和商标使用的影响角度，讨论该制度对商标权保护体系的冲击，并经过分析得出结论：虽然烟草朴素包装对商标权构成限制，但不会从根本上影响商标功能的发挥，商标获得知识产权法保护仍具备稳固的根基； 第三章主要讨论烟草朴素包装对权利限制的正当性。第一部分首先介绍了《Trips协议》对知识产权权利限制的条款，并通过分析认为烟草朴素包装不违反《Trips协议》的要求；第二部分讨论了烟草朴素包装对商标权利限制的正当性，并经过分析得出结论：以公共健康这一公共利益为目的对商标权限制具备正当性，并且这种限制属于合理、必须的，不会构成公权对私权利不正当的干预。同时也指出，我国如果引入烟草朴素包装制度，在现有商标法律体系层面不存在根本性障碍，但是需要提升现阶段国内控烟水平，并使公众能够接受烟草产品朴素包装，甚至“丑陋”零售包装的现实。
[Abstract]:Tobacco plain packaging is a new policy of tobacco control in today's society. Its core is to require tobacco products to be displayed in a plain and unified image, and to remove the gorgeous decorative and beautifying elements on the packaging. Australia has introduced a series of laws and regulations to enforce tobacco packaging, becoming the first country in the world to control tobacco by simple packaging legislation. As soon as Australia's regulations were introduced, they immediately drew strong opposition from the country's tobacco industry: they argued that the rules on plain packaging restricted the freedom of holders of tobacco trademarks to exercise their rights and infringed on trademark rights. Even tobacco companies have asked the court to invalidate the relevant legislation. According to the above situation, this paper analyzes the trademark problems in plain packaging of tobacco. In addition to the introduction and conclusion, this paper is divided into three chapters: the first chapter introduces the basic concept of tobacco plain packaging and its impact on tobacco products, at the same time, summarizes the current legislative situation of tobacco plain packaging in various countries. And introduces the relevant laws and regulations of Australia and the judicial practice situation emphatically; The second chapter discusses the impact of this system on trademark protection system from the perspective of the impact of tobacco plain packaging on trademark function and trademark use. However, it will not affect the function of trademark fundamentally, and the protection of trademark acquired by intellectual property law still has a solid foundation; The third chapter mainly discusses the legitimacy of tobacco packaging to the right restriction. The first part introduces the provisions of the Trips Agreement on the limitation of intellectual property rights, and through the analysis of the simple packaging of tobacco does not violate the requirements of the "Trips Agreement"; The second part discusses the legitimacy of tobacco simple packaging to the restriction of trademark right, and draws the conclusion that the limitation of trademark right is justified for the purpose of public health, and this kind of restriction is reasonable and necessary. It does not constitute improper interference of public power in private rights. At the same time, it is also pointed out that there are no fundamental obstacles in the existing trademark legal system if the simple packaging system of tobacco is introduced in our country, but it is necessary to raise the level of tobacco control in China at the present stage and to enable the public to accept the plain packaging of tobacco products. Even the reality of "ugly" retail packaging.
【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】：D913
本文编号：2359272
[Abstract]:Tobacco plain packaging is a new policy of tobacco control in today's society. Its core is to require tobacco products to be displayed in a plain and unified image, and to remove the gorgeous decorative and beautifying elements on the packaging. Australia has introduced a series of laws and regulations to enforce tobacco packaging, becoming the first country in the world to control tobacco by simple packaging legislation. As soon as Australia's regulations were introduced, they immediately drew strong opposition from the country's tobacco industry: they argued that the rules on plain packaging restricted the freedom of holders of tobacco trademarks to exercise their rights and infringed on trademark rights. Even tobacco companies have asked the court to invalidate the relevant legislation. According to the above situation, this paper analyzes the trademark problems in plain packaging of tobacco. In addition to the introduction and conclusion, this paper is divided into three chapters: the first chapter introduces the basic concept of tobacco plain packaging and its impact on tobacco products, at the same time, summarizes the current legislative situation of tobacco plain packaging in various countries. And introduces the relevant laws and regulations of Australia and the judicial practice situation emphatically; The second chapter discusses the impact of this system on trademark protection system from the perspective of the impact of tobacco plain packaging on trademark function and trademark use. However, it will not affect the function of trademark fundamentally, and the protection of trademark acquired by intellectual property law still has a solid foundation; The third chapter mainly discusses the legitimacy of tobacco packaging to the right restriction. The first part introduces the provisions of the Trips Agreement on the limitation of intellectual property rights, and through the analysis of the simple packaging of tobacco does not violate the requirements of the "Trips Agreement"; The second part discusses the legitimacy of tobacco simple packaging to the restriction of trademark right, and draws the conclusion that the limitation of trademark right is justified for the purpose of public health, and this kind of restriction is reasonable and necessary. It does not constitute improper interference of public power in private rights. At the same time, it is also pointed out that there are no fundamental obstacles in the existing trademark legal system if the simple packaging system of tobacco is introduced in our country, but it is necessary to raise the level of tobacco control in China at the present stage and to enable the public to accept the plain packaging of tobacco products. Even the reality of "ugly" retail packaging.
【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】：D913
【参考文献】
相关期刊论文 前1条
1 王莲峰;;论商标的使用及其认定——基于《商标法》第三次修改[J];公民与法(法学);2011年03期
本文编号：2359272
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