商标获得显著性研究
发布时间：2018-07-27 12:24
【摘要】：随着时代的发展，市场的成熟，描述性标识越来越受到市场的青睐。因为企业逐渐意识到虽然描述性标识固有显著性不高，，但却能直观反映商品或者服务的特点。这种特性天生便能勾动消费者的联想，从而在市场投入初期，经营者只需花费较低的成本便能依靠商标将商品在消费者中广泛推广，进而获得较高的声誉。与市场上踊跃出现的各类弱显著性商标相比，我国在获得显著性商标注册制度上则略显单薄，难以应对市场中层出不穷的新问题。这些问题主要是因我国对于获得显著性商标的认定标准不够完善，以及对获得显著性商标功能性的判断立法缺失所致。由于美国获得显著性商标注册制度较为完善，且在司法判例中形成了一系列行之有效的规则，在一定程度上值得我们进行研究和适当借鉴。因此，本文在研究我国司法实践中问题的基础上，通过借鉴美国在司法实践中总结出获得显著性商标注册经验而提出了相应的立法及司法建议。最后笔者结合我国基本国情，提出具体的《获得显著性商标注册审查指南（建议）》，以及《消费者调查问卷（建议）》，以期为我国日益增多的获得显著性标识审查提供些许参考。（详见附录一、二） 本文笔者分为三章进行探讨研究。在第一章中，笔者首先提出获得显著性商标注册制度中存在的问题，并列举具体的案例予以详细的实证分析。目前我国在获得显著性商标注册制度上存在着对商标获得显著性考察的角度不够完善以及在允许不具有固有显著性商标注册时未能考虑功能性因素两个问题。 其次在第二章中，笔者依据第一章的思路，对美国获得显著性商标注册制度进行了全面的考察。在认定标识获得显著性上，美国一般是从标识的使用方式、广告宣传、同行业经营者使用、商业证据以及消费者证据的角度进行考察，其中消费者调查报告是美国法院认定获得显著性的基础，且经营者对标识的使用行为本身对获得显著性并没有决定性的作用，起到决定性作用的是这些行为在消费者心目中产生的效果，而这些效果集中体现于消费者调查报告中。在认定获得显著性标识是否具有功能性上，美国联邦最高法院在Qualitex案中对功能性的看法相比Inwood案中确定的标准走的更远，其在原有的功能性定义上加了一小段“如果标识能够带来非来源于商誉的竞争优势”也应当被认定为具有功能性，比如在环保产品上，绿色有助于传递环保的理念，因此在环保领域纯绿色标识能够带来非正当的竞争优势而不允许注册为商标。这两项标准有效的平衡了消费者与经营者，尤其是同行业经营者之间的利益，值的我国借鉴。 第三章从我国现行立法现状入手，分析我国获得显著性商标制度的优劣，并在借鉴美国判例法的基础上结合我国现状提出具体的《获得显著性商标注册审查指南（建议）》，以及《消费者调查问卷（建议）》，以期为我国日益增多的获得显著性标识审查提供些许参考。
[Abstract]:With the development of the times and the maturity of the market, the descriptive logo is becoming more and more popular in the market. As the enterprise gradually realizes that although the inherent distinctiveness of the descriptive logo is not high, it can directly reflect the characteristics of the goods or services. The lower cost can rely on the trademark to popularize the goods widely in the consumer and gain a high reputation. Compared with the various weak marked trademarks that appear in the market, our country is slightly thinner in obtaining the marked trademark registration system, which is difficult to cope with the new problems in the market. These problems are mainly due to our country's problem. It is not perfect to obtain the identification standard of significant trademarks, and the lack of legislation to judge the function of significant trademarks. Since the United States has acquired a significant trademark registration system and has formed a series of effective rules in the judicial precedent, it is worth our research and appropriate reference to some extent. On the basis of studying the problems of judicial practice in our country, this paper puts forward the corresponding legislative and judicial suggestions by drawing lessons from the United States in the judicial practice and summing up the experience of obtaining significant trademark registration. Finally, the author combines the basic national conditions of our country, and puts forward specific guidelines for the examination of the registration of marked trademark registration (suggestion), and the "consumer". Questionnaire (recommendation) >, with a view to providing a little reference for the increasing number of significant mark reviews in China. (see Appendix 1, two)
The author of this paper is divided into three chapters. In the first chapter, the author first puts forward the problems that exist in the registration system of marked trademark, and enumerates specific cases to give a detailed empirical analysis. Two problems can not be considered when allowing the registration of trademark with inherent distinctiveness.
Secondly, in the second chapter, according to the first chapter, the author makes a comprehensive survey on the acquisition of significant trademark registration system in the United States. In the significance of identifying signs, the United States is generally viewed from the way of use of signs, advertising, business operators, commercial evidence and consumer evidence. The survey report is the basis for the identification of the United States Court, and the use of the operator on the identity of the identity is not decisive and plays a decisive role in the effect of the behavior in the mind of the consumer, and the effect concentration is found in the consumer survey report. In the case of the functional identity, the Federal Supreme Court's view of functionality in the Qualitex case is farther from the standard defined in the Inwood case. It adds a small paragraph to the original functional definition, "if the logo can bring a non source of competitive advantage to goodwill", it should be identified as functional, such as In environmental protection products, green helps to transfer the concept of environmental protection, so the pure green logo in the field of environmental protection can bring unjustified competitive advantage and not be allowed to be registered as a trademark. These two standards effectively balance the interests of consumers and operators, especially in the same industry, value of our country for reference.
The third chapter, starting with the current status of China's current legislation, analyzes the advantages and disadvantages of our country's acquisition of significant trademark system, and puts forward specific "guidelines for obtaining significant trademark registration (recommendations)" and "consumer survey questionnaire (suggestion)" based on the current situation of our country on the basis of the United States case law, with a view to getting more and more significant in China. The identification review provides some reference.
【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】：D971.2;D923.43
本文编号：2147816
[Abstract]:With the development of the times and the maturity of the market, the descriptive logo is becoming more and more popular in the market. As the enterprise gradually realizes that although the inherent distinctiveness of the descriptive logo is not high, it can directly reflect the characteristics of the goods or services. The lower cost can rely on the trademark to popularize the goods widely in the consumer and gain a high reputation. Compared with the various weak marked trademarks that appear in the market, our country is slightly thinner in obtaining the marked trademark registration system, which is difficult to cope with the new problems in the market. These problems are mainly due to our country's problem. It is not perfect to obtain the identification standard of significant trademarks, and the lack of legislation to judge the function of significant trademarks. Since the United States has acquired a significant trademark registration system and has formed a series of effective rules in the judicial precedent, it is worth our research and appropriate reference to some extent. On the basis of studying the problems of judicial practice in our country, this paper puts forward the corresponding legislative and judicial suggestions by drawing lessons from the United States in the judicial practice and summing up the experience of obtaining significant trademark registration. Finally, the author combines the basic national conditions of our country, and puts forward specific guidelines for the examination of the registration of marked trademark registration (suggestion), and the "consumer". Questionnaire (recommendation) >, with a view to providing a little reference for the increasing number of significant mark reviews in China. (see Appendix 1, two)
The author of this paper is divided into three chapters. In the first chapter, the author first puts forward the problems that exist in the registration system of marked trademark, and enumerates specific cases to give a detailed empirical analysis. Two problems can not be considered when allowing the registration of trademark with inherent distinctiveness.
Secondly, in the second chapter, according to the first chapter, the author makes a comprehensive survey on the acquisition of significant trademark registration system in the United States. In the significance of identifying signs, the United States is generally viewed from the way of use of signs, advertising, business operators, commercial evidence and consumer evidence. The survey report is the basis for the identification of the United States Court, and the use of the operator on the identity of the identity is not decisive and plays a decisive role in the effect of the behavior in the mind of the consumer, and the effect concentration is found in the consumer survey report. In the case of the functional identity, the Federal Supreme Court's view of functionality in the Qualitex case is farther from the standard defined in the Inwood case. It adds a small paragraph to the original functional definition, "if the logo can bring a non source of competitive advantage to goodwill", it should be identified as functional, such as In environmental protection products, green helps to transfer the concept of environmental protection, so the pure green logo in the field of environmental protection can bring unjustified competitive advantage and not be allowed to be registered as a trademark. These two standards effectively balance the interests of consumers and operators, especially in the same industry, value of our country for reference.
The third chapter, starting with the current status of China's current legislation, analyzes the advantages and disadvantages of our country's acquisition of significant trademark system, and puts forward specific "guidelines for obtaining significant trademark registration (recommendations)" and "consumer survey questionnaire (suggestion)" based on the current situation of our country on the basis of the United States case law, with a view to getting more and more significant in China. The identification review provides some reference.
【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】：D971.2;D923.43
【参考文献】
相关博士学位论文 前1条
1 湛茜;非传统商标国际注册问题研究[D];复旦大学;2012年
本文编号：2147816
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