法學(xué)外文翻譯 外文文獻(xiàn) 英文文獻(xiàn) 淺談馳名商標(biāo)之淡化與反淡化.doc

法學(xué)外文翻譯-淺談馳名商標(biāo)之淡化與反淡化目 錄1 外文參考文獻(xiàn)譯文 22 外文參考文獻(xiàn)原文 101外文參考文獻(xiàn)譯文the well-known trademarks and dilute anti-dilutedfirst, well-known trademarks summary well-known trademarks is a long-term use, in the market enjoy a high reputation, known for the relevant public and by certain procedures that the trademark. since the paris convention was first introduced the concept of well-known trademarks, the well-known trademarks for special protection legislation has become the world trend. paris convention stipulates: all of the members were identified as the well-known trade marks, or registered first, the first to ban others, and the other is to prohibit the use of others with identical or similar logo. trips further provides: 1, the paris convention for the special protection and extension of the services of well-known trademarks, 2, the scope of protection does not extend to prohibit similar goods or services with the well-known trademarks for use on the same or similar logo, 3, on how to that a well-known trademarks in principle a simple requirement. national legislation on the practice, the well-known trade marks that standards vary, often based on specific trade mark promotion of public awareness of related areas, logo merchandise sales and the scope of national interests, and other factors identified. from an international treaty to protect the well-known trademarks mind, that well-known trade marks and protection of well-known trade marks are closely linked. second, the well-known trademarks protected mode on the protection of the main trademarks of relative and absolute protectionism two models. the former refers to ban others with well-known trademarks identical or similar trademark with the trademark owner the same or similar industries in the registration or use of similar goods in non-use of the same or similar trademarks is permitted, the paris convention that is, relative to protectionism. while the latter refers to ban others in any industry, including the well-known trade mark goods with different or similar to those in the industry to register with the well-known trade marks and the use of the same or similar trademarks, trips agreement that is taken by the expansion of the absolute protectionism. in simple economic form, as specified by the trade mark goods at a single, specific trade mark goods and the link between more closely. with, a valuable well-known trademarks have been more and more use of different types of commodities, which are among the types of goods on the property may be totally different, in a trademark associated with the commodity groups and the relative weakening of trade marks commodity producers and the relative isolation. not well-known trademarks such as cross-category protection and allow others to register, even if the goods obvious differences, the public will still be in the new goods and reputable well-known trademarks to establish a link between people that the goods may be well-known trademark, the new commodities , or the well-known trademarks of goods and people between the existence of a legal, organizational or business association, thus leading to the misuse of consumers purchase. the rapid development of the commodity today, the relative protectionism has not improved the protection of the public and well-known trademark owners interests. in view of this, in order to effectively prevent the reputation of well-known trademarks, and the identification of significant features and advertising value by the improper use of the damage, many countries on the implementation of a well-known trademarks is protectionism, which prohibits the use of any products on the same or with the well-known trademarks similar to the trademark. trips agreement article 16, paragraph 3 states: paris convention 1967 text, in principle, applicable to the well-known trademarks and logos of the commodities or services are not similar goods or services, if not similar goods or services on the use of the trademark will be suggest that the goods or services with the well-known trademarks on a link exists, so that the interests of all well-known trademarks may be impaired. third, the well-known trademarks diluted the protection of trademark rights, there are mainly two: one for the confusion theory, a theory for desalination. the main traditional trademark protection for trade marks the difference between functional design, and its theoretical basis for the theory of confusion. in summary, which is to ensure that the trademark can be identification, confirmation and different goods or services different from the significant features, to avoid confusion, deception and e wu, the law gives first use of a person or persons registered with exclusive rights, which prohibits any without the permission of the rights to use may cause confusion among consumers in the same or similar trademarks. clearly, the traditional concept of trademark protection, to stop the possibility of confusion is the core of trademark protection. with the socio-economic development and commercialization of the continuous improvement of the degree, well-known trademarks by the enormous implication for the growing commercial value have attracted the attention of people. compared with ordinary marks, bearing well-known trademarks by the significance and meaning beyond the trademark rights to the general, and further symbol of product quality and credit, contains a more valuable business assets - goodwill. well-known trade mark rights of people to use its excellent reputation of leading the way in the purchasing power, instead of the use of trademarks to distinguish between different products and producers. when the mark beyond the role of this feature to avoid confusion, then, this factor is obviously confused and can not cover everything, and other factors become as important as or more important. thus, in theory confusion on the basis of further development of desalination theory. trademark dilution (dilution), also known as trademark dilution, is one of trademark infringement theory. watered down, according to the u.s. anti-federal trademark law dilute means regardless of well-known trade mark rights and the others between the existence of competition, or existence of confusion, misunderstanding or the possibility of deception, reduce and weaken the well-known trademarks its goods or services and the identification of significant capacity of the act. in china, some scholars believe that refers to dilute or weaken gradually weakened consumer or the public will be trademarks of the commercial sources with a specific link between the ability. trademark faded and that the main theory is that many market operators have using well-known trademarks of the desire of others, engage in well-known trademarks should be to prevent others from using its own unique identification of special protection. 1927, frank si kaite in the harvard law reviews wrote the first trademark dilute theory. he believes that people should not only be trademarks of others prohibit the use of the mark, he will compete in the commodity, and should prohibit the use of non-competitive goods on. he pointed out: the real role of trade marks, not distinguish between goods operators, but satisfied with the degree of difference between different commodities, so as to promote the continuous consumer purchase. from the basic function of trademarks, trade mark used in non-competitive goods, their satisfaction with regard to the distinction between the role of different commodities will be weakened and watered down. trademarks of the more significant or unique, to the public the impression that the more deeply, that is, should be restricted to non-compete others in the use of goods or services. since then, the intellectual property rights branch of the american bar association chairman thomas e si kaite smith on the theory made a further elaboration and development. he said: if the courts allow or laissez-faire rolls royce restaurants, rolls-royce cafeteria, rolls-royce pants, rolls-royce the candy, then not 10 years, rolls-royce trademark owners will no longer have the world well-known trademarks. si kaite in accordance with the theory of well-known trade marks have faded because of the effect of non-rights holders with well-known trademarks in the public mind the good image of well-known trademarks will be used in non-competitive goods, so as to gradually weaken or reduce the value of well-known trademarks, that is, by the well-known trademarks have credibility. trademark tag is more significant or unique characteristics, which in the public mind the impression that the more deep, more is the need for increased protection, to prevent the well-known trade marks and their specific goods was the link between the weakening or disappearance. in practice, trademarks diluted share a wide range of operating methods, such as: a well-known trademarks of others will still use as a trademark, not only in the use of the same, similar to the goods or services. for example, household appliances, siemens trademark as its own production of the furnitures trademark. 2. to other peoples well-known trademarks as their corporate name of the component. such as haier trademark for the name of his restaurant. 3. to the well-known trademarks of others as the use of domain names. for example, watches trademark omega registered the domain name for themselves (www.omega.com). 4. to the well-known trademarks of others as a commodity and decorating use. 5. will be others as well-known trade marks of goods or services using the common name. for example, kodak interpreted as film, is a camera with photographic material, or film, also known as kodak, this interpretation is also the mark of the water down. if the kodak ignored the trademark owner, after a period of time, people will kodak film is, the film is kodak. in this way, the kodak film-related goods has become the common name, it as a trademark by a significant, identifiable on limbo. the public well-known jeep (jeep), aspirin (aspirin), freon (freon), and so was the registration of foreign goods are due to improper use and management and the protection of poor, evolved into similar products common name, thus lost its trademark logo features. u.s. anti-diluted federal trademark law before the implementation of the federal court of appeal through the second from 1994 to 1996 case, identified the following violations including the trademark dilution: (1) vague, non-means as others in similar goods not on authorized the use of a trademark so that the sales of goods and reduce the value of trademarks or weakened (2) pale, that is because of violations related to the quality, or negative, to demonize the acts described a trademark goods may be caused to others the negative effects of the situation, (3) to belittle, or improperly changed, or derogatory way to describe a trade mark case. the majority of our scholars believe that the well-known trademarks diluted there are two main forms: watered down and defaced. the so-called dilute the people will have no right to use the same or similar trademark with the well-known trademarks used in different types of commodities, thus making the mark with the goods weakened ties between the specific acts the so-called defaced is that people will have no right to use the same or similar marks for the well-known trade marks will have to belittle good reputation, tarnished the role of different types of goods on the act. some scholars believe that the desalination also refers to the three aspects of well-known trademarks damage. first, in a certain way to demonize the relevant well-known trademarks; second, some way related to well-known trademark dark; third is the indirect way so that consumers will distort trade mark goods for the general misunderstanding of the name. in general, can be diluted in the form summarized as follows: 1, weakening weakening is a typical diluted form, also known as dark, is that others will have some visibility in the use of a trademark is not the same, similar to the goods or services, thereby weakening the mark with its original logo of goods or services the link between, weakening the mark was a significant and identifiable, thus bearing the trade mark by the damage caused by acts of goodwill. weakening the mark of recognition of the significant damage is serious, it can be the recognition of trademark dilution, was significant, or even make it completely disappeared, then to the mark by carrying the reputation of devastating combat. first, the weakening of the identification is the weakening and lower. any unauthorized person, others will have some visibility in the use of a trademark is not the same, similar to the goods or services, will reduce its recognition of. but consumers were referred to the mark, it may no longer think of first is the original goods or services, not only is the original or goods or services, consumers simply will not even think of goods or services, but the trademark dilution of goods or services. there is no doubt that this marks the recognition of, is a heavy blow. weakening of the mark is significantly weakened and the lower. mark is significantly different from other commercial trademark marked characteristics. a certain well-known trademarks, which in itself should be a very significant, very significant and can be quickly and other signs of its own separate. however, the trademark dilution of the same or similar trademarks used in different goods or services, so that was the trademark and other commercial marked difference in greatly reduced, to the detriment of its significant. of course, regardless of the weakening of the mark was a significant or identifiable, are the ultimate impact of the mark by the bearer of goodwill. because the trade mark is the carrier of goodwill, the mark of any major damage, the final performance for all bearing the trade mark by the goodwill of the damage.2, tarnished means others will have some well-known trademarks in the use of the good reputation of the trademark will have to belittle, defaced role of the goods or services on the act. contaminate the trademarks of others, is a distortion of trade marks to others, the use of the damage, not only reduced the value of the mark, even on such values were defaced. as tarnished reputation is a trademark of damage, so tarnished included in the diluted acts, is also relatively accepted view. moreover, in the field of trademark faded, tarnished than the weakening of the danger of even greater acts, the consequences are more serious. 3, degradation degradation is due to improper use of trademarks, trade mark goods for the evolution of the common name recognition and loss of function. trademark dilution degradation is the most serious kind. degradation of the event, will completely lose their identification marks, no longer has the distinction function as the common name of the commodity. fourth, protection against dilute based on the well-known trademarks dilute the understanding, and accompanied by a serious weakening of well-known trademarks, all countries are gradually legislation to provide for the well-known trademarks to protect anti-diluted. there are specific models: 1, the development of special anti-dilute the protection of well-known trademarks the united states is taking this protection on behalf of the typical pattern. 1995, in order to prevent lower dilute the only representative of the public eye, the unique image of the trademark to protect the trademark value of advertising, the u.s. congress passed the national reunification of the anti-federal trademark law watered down, so as to the well-known trademarks all provide the unified and effective national anti-dilute the protection. u.s. anti-diluted in trademark protection has been added a new basis for litigation, which is different from the traditional basis of trademark infringement litigation. trademark infringement of the criteria is confusing, the possibility of deception and misleading, and the trademark dilution criteria is unauthorized to others well-known trademarks of the public to reduce the use of the trademark instructions for goods and services only and in particular of feelings. it is clear that the u.s. law is anti-diluted basis, business reputation damage and the possibility of well-known trade mark was a significant weakening of the possibility of providing relief. moreover, anti-faded law does not require the application of competitive relations or the existence of possible confusion, which is more conducive to the exercise of trademark right to appeal. 2, through the anti-unfair competition law protection some countries apply anti-unfair competition law to protect famous trademarks from being watered down. such as greece, anti-unfair competition law, the first one: prohibition of the use of well-known trademarks in order to take advantage of different commodities on the well-known trademarks dilute its credibility was significant. although some countries in the anti-unfair competition law does not explicitly prohibits trademark faded, but the trademark dilution proceedings, the application of unfair competition litigation. 3, through or under well-known trademark protection within the scope of trademark protection most civil law countries is this way. 1991, the french intellectual property code, di qijuan trademark law section l.713-5 of the provisions that: not in similar goods or services on the use of well-known trade marks to the trademark owner or a loss caused by the improper use of trademarks , against people should bear civil liability. germany in 1995, the protec