论商标权与商号权冲突及解决机制
发布时间：2018-12-31 17:04
【摘要】：所谓商标与商号的冲突,实质上是商标权与商号权的冲突,二者的冲突在理论界和实务界都是比较棘手的难题,笔者从我国二者冲突现状着手,用比较分析法的研究方式和实证分析法的研究方式探讨了二者冲突的解决途径,特别对二者冲突的类型做了全面分析。 本文共分四部分论述商标权与商号权冲突。 首先,笔者从商标与商号的概念着手引出商标权与商号权的概念,以及商标权的取得,探讨了商标权与商号权的区别和联系。在这部分笔者肯定了商号权的知识产权地位,对以下商号权与商标权权利冲突的探讨奠定了基础。 其次,笔者从知识产权冲突的界定着手,来探讨认定商标权与商号权权利冲突的标准,对二者侵权标准和二者权利冲突标准作了区分。通过商标权与商号权权利冲突的内涵,把二者冲突从两个维度进行组合分析,试图探讨出二者冲突的全部类型及表现形式。在这部分的最后,笔者还分析了造成二者冲突的原因。 再次,笔者从比较法的视角探讨了各个国家法律是如何规制商标权与商号权冲突的,一般分为两种方式,第一种方式是把商标权或商号权作为优先权予以保护；第二种方式是利用《反不正当竞争法》进行规制。在考察了各个国家和国际公约对解决二者冲突的法律规定,笔者认为有许多值得我们借鉴的地方,比如几个部门法之间相互配合；.把商号权纳入在先权范围；采用“混淆”标准来判断二者的权利冲突；采用“淡化”标准来判断驰名商标或驰名商号。 最后,笔者从两个角度探讨了解决我国商标权与商号权冲突的途径。第一个角度是在现有法律制度下如何缓解二者冲突,对司法机关而言应该坚持保护在先权原则、禁止混淆原则和利益平衡原则；对企业而言应该建立事前预防机制,进行商标商号一体化保护来规避抢注现象；对行政管理机关而言应该建立统一的商号检索系统和商号商标交叉检索系统。第二个角度是从立法的层面探讨解决二者冲突的途径,笔者建议把商号权纳入知识产权体系、对驰名商标的保护扩大至驰名商号、完善《反不正当竞争法》的内容使之更好地配合新《商标法》的实施。
[Abstract]:The conflict between trademark and trade name is essentially the conflict between trademark right and trade name right. The conflict between them is a difficult problem in theory and practice. This paper discusses the ways to solve the conflict between them by using the comparative analysis method and the empirical analysis method, especially makes a comprehensive analysis on the types of the two conflicts. This article is divided into four parts to discuss the conflict between trademark right and trade name right. First of all, the author starts from the concept of trademark and trade name to elicit the concept of trademark right and trade name right, as well as the acquisition of trademark right, and discusses the difference and relation between trademark right and trade name right. In this part, the author affirms the intellectual property status of the trade name right, and lays a foundation for the discussion of the conflict between the trade name right and the trademark right. Secondly, from the definition of the conflict of intellectual property rights, the author discusses the standard of the conflict between trademark right and trade name right, and makes a distinction between the two standards of infringement and conflict of rights. Through the connotation of the conflict between trademark right and trade name right, this paper analyzes the conflict from two dimensions, and tries to find out all the types and forms of the conflict. At the end of this part, the author also analyzes the causes of the conflict between the two. Thirdly, from the perspective of comparative law, the author discusses how the laws of various countries regulate the conflict between trademark right and trade name right, which are generally divided into two ways: the first way is to protect the trademark right or the trade name right as the priority; The second way is to use the anti-unfair competition law to regulate. After examining the legal provisions of various countries and international conventions to resolve the conflicts between the two, the author thinks that there are many aspects that we should learn from, such as the cooperation between several departments; The right of trade name should be brought into the scope of the first right; the standard of "confusion" should be used to judge the conflict of rights between them; and the standard of "desalination" should be adopted to judge the well-known trademark or well-known trade name. Finally, the author discusses the ways to solve the conflict between trademark right and trade name right from two angles. The first angle is how to alleviate the conflict between the two under the existing legal system. To the judicial organs, we should insist on the principle of protecting the prior right, prohibiting the principle of confusion and the principle of balance of interests. For enterprises, it is necessary to establish a preventive mechanism in advance to protect trademarks and trade names in an integrated way to avoid the phenomenon of preemption, and to establish a unified trade name retrieval system and a trade name cross search system for administrative organs. The second angle is to probe into the ways to resolve the conflict between the two from the angle of legislation. The author suggests that the right of trade name should be brought into the intellectual property system, and the protection of well-known trademarks should be extended to well-known trade names. Improve the content of the Anti-unfair Competition Law to better cooperate with the implementation of the new Trademark Law.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.43;D922.294
本文编号：2396868
[Abstract]:The conflict between trademark and trade name is essentially the conflict between trademark right and trade name right. The conflict between them is a difficult problem in theory and practice. This paper discusses the ways to solve the conflict between them by using the comparative analysis method and the empirical analysis method, especially makes a comprehensive analysis on the types of the two conflicts. This article is divided into four parts to discuss the conflict between trademark right and trade name right. First of all, the author starts from the concept of trademark and trade name to elicit the concept of trademark right and trade name right, as well as the acquisition of trademark right, and discusses the difference and relation between trademark right and trade name right. In this part, the author affirms the intellectual property status of the trade name right, and lays a foundation for the discussion of the conflict between the trade name right and the trademark right. Secondly, from the definition of the conflict of intellectual property rights, the author discusses the standard of the conflict between trademark right and trade name right, and makes a distinction between the two standards of infringement and conflict of rights. Through the connotation of the conflict between trademark right and trade name right, this paper analyzes the conflict from two dimensions, and tries to find out all the types and forms of the conflict. At the end of this part, the author also analyzes the causes of the conflict between the two. Thirdly, from the perspective of comparative law, the author discusses how the laws of various countries regulate the conflict between trademark right and trade name right, which are generally divided into two ways: the first way is to protect the trademark right or the trade name right as the priority; The second way is to use the anti-unfair competition law to regulate. After examining the legal provisions of various countries and international conventions to resolve the conflicts between the two, the author thinks that there are many aspects that we should learn from, such as the cooperation between several departments; The right of trade name should be brought into the scope of the first right; the standard of "confusion" should be used to judge the conflict of rights between them; and the standard of "desalination" should be adopted to judge the well-known trademark or well-known trade name. Finally, the author discusses the ways to solve the conflict between trademark right and trade name right from two angles. The first angle is how to alleviate the conflict between the two under the existing legal system. To the judicial organs, we should insist on the principle of protecting the prior right, prohibiting the principle of confusion and the principle of balance of interests. For enterprises, it is necessary to establish a preventive mechanism in advance to protect trademarks and trade names in an integrated way to avoid the phenomenon of preemption, and to establish a unified trade name retrieval system and a trade name cross search system for administrative organs. The second angle is to probe into the ways to resolve the conflict between the two from the angle of legislation. The author suggests that the right of trade name should be brought into the intellectual property system, and the protection of well-known trademarks should be extended to well-known trade names. Improve the content of the Anti-unfair Competition Law to better cooperate with the implementation of the new Trademark Law.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.43;D922.294
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