“乔丹”商标争议行政纠纷系列案的裁判规则及其启示(英文)

日期:19-06-19 来源: 作者:admin

摘要(Abstract)：

In the process of interest balancing and value selecting in the theoretical research and practice of the Intellectual Property Law,the proper balance between the judicial policy and value of"stringent judicial protection"and"balancing of interest"should be seriously taken into account.One of the typical representatives is the interest dispute and balance between the obligee of the prior right of

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作者(Author): Tao Kaiyuan;Wang Chuang;Xia Junli;Wang Yanfang;Du Weike;Liu Jiajia;

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参考文献(References)：

1 Article 91 of the Administrative Litigation Law:“Where a party’s petition for retrial falls under any of the following circumstances a people’s court shall conduct retrial...(7)The legal instrument based on which the original judgment or ruling is entered has been revoked or modified...”.
2 Article 31 of the Trademark Law:An application for the registration of a trademark shall not create any prejudice to the prior right of another person,nor unfair means be used to pre-emptively register the trademark of some reputation another person has used.
3 Article 99 of the General Principles of the Civil Law of the People’s Republic of China:“Citizens shall enjoy the right of personal name and shall be entitled to determine,use or change their personal names in accordance with relevant provisions.Interference with,usurpation of and false representation of personal names shall be prohibited.Legal persons,individual businesses and individual partnerships shall enjoy the right of name.Enterprises as legal persons,individual businesses and individual partnerships shall have the right to use and lawfully assign their own names”.
4 Article 2 of the Tort Liability Law of the People’s Republic of China:“Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law.“Civil rights and interests”used in this Law shall include the right to life,the right to health,the right to name,the right to reputation,the right to honor,right to self-image,right of privacy,marital autonomy,guardianship,ownership,usufruct,security interest,copyright,patent right,exclusive right to use a trademark,right to discovery,equities,right of succession,and other personal and property rights and interests”.
5 Article 10,paragraph 1,subparagraph 8 of the Trademark Law:“The following signs shall not be used as trademarks...those detrimental to socialist morals or customs,or having other unhealthy influences”.
6 Article 41,paragraph 1 of the Trademark Law:“Where a registered trademark stands in violation of the provisions of articles 10,11 and12 of this Law,or the registration of a trademark was acquired by fraud or any other unfair means,the Trademark Office shall cancel the registered trademark in question;and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to cancel such a registered trademark”.
7 Article 99 of the General Principles of the Civil Law:“Citizens shall enjoy the right of personal name and shall be entitled to determine,use or change their personal names in accordance with relevant provisions.Interference with,usurpation of and false representation of personal names shall be prohibited.Legal persons,individual businesses and individual partnerships shall enjoy the right of name.Enterprises as legal persons,individual businesses and individual partnerships shall have the right to use and lawfully assign their own names”.
8 Article 120 of the General Principles of the Civil Law:“If a citizen’s right of personal name,portrait,reputation or honor is infringed upon,he shall have the right to demand that the infringement be stopped,his reputation be rehabilitated,the ill effects be eliminated and an apology be made;he may also demand compensation for losses.The above paragraph shall also apply to infringements upon a legal person’s right of name,reputation or honor.”
9 Article 2 of the Tort Liability Law:“Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law.Civil rights and interests used in this Law shall include the right to life,the right to health,the right to name,the right to reputation,the right to honor,right to self-image,right of privacy,marital autonomy,guardianship,ownership,usufruct,security interest,copyright,patent right,exclusive right to use a trademark,right to discovery,equities,right of succession,and other personal and property rights and interests”.
10 For instance,in the Law of Personality Right,objects protected by the right of personal name includes real names as well as aliases,pseudonyms,stage names,and infant names.Only those can refer to and represent a certain person could become the objects of the right of personal name.See WANG LIMING,LAW OF PERSONALITY RIGHT,at 211(China Renmin University Press,2009).In the Personal Rights Law,in broad sense,the right of personal name includes the identification symbols that could distinguish a natural person like courtesy names,literary names,pseudonyms,and stage names.See YANG LIXIN,PERSONAL RIGHTS LAW,at 177(Law Press China,2015).In the Law of Personality Right,the right of personal name shall expand by analogy to apply to esteemed names,pseudonyms,and stage names besides those stipulated in the provision,both in Chinese and in foreign languages.See WANG ZEJIAN,LAW OF PERSONALITY RIGHT,at 118(Peking University Press,2012).
11 Article 5,paragraph 3 of the Law of the People’s Republic of China against Unfair Competition:“An operator may not adopt the following unfair means to carry to transactions in the market and cause damage to competitors:(1)passing off the registered trademark of another person;(2)using,without authorization,the name,packaging or decoration peculiar to well-known goods or using a name,packaging or decoration similar to that of well-known goods,so that his goods are confused with the well-known goods of another person,causing buyers to mistake them for the well-known goods of the other person;(3)using,without authorization,the business name or personal name of the other person on his own goods,leading people to mistake them for the goods of the other person;(4)forging or falsely using,on his goods,symbols of quality such as symbols of certification and symbols of famous and high-quality goods,falsifying the origin of his goods,and making false representations which are misleading as to the quality of the goods”.
12 The Trademark Review and Trail Standard(amended in 2017)also has the similar regulation:other persons’names include real names,pseudonyms,stage names and aliases.
13 WANG LIMING,LAW OF PERSONALITY RIGHT,at 5-6(China Renmin University Press,2016).
14 Id.,106.
15 WANG LIMING,LAW OF PERSONALITY RIGHT,at 459(Peking University Press,2013).
16 YANG LIXIN,LAW OF PERSONALITY RIGHT,at 177(Law Press China,2015).
17 WANG LIMING,supra note 15.
18 Article 20 of the Tort Liability Law:“Where any harm caused by a tort to a personal right or interest of another person gives rise to any loss to the property of the victim of the tort,the tort-feasor shall make compensation as per the loss sustained by the victim as the result of the tort.If the loss sustained by the victim is hard to be determined and the tort-feasor obtains any benefit from the tort,the tort-feasor shall make compensation as per the benefit obtained by it.If the benefit obtained by the tort-feasor from the tort is hard to be determined,the victim and the tort-feasor disagree to the amount of compensation after consultation,and an action is brought to a people’s court,the people’s court shall determine the amount of compensation based on the actual situations”.
19 INTERPRETATION ON PROVISIONS OF,LEGISLATIVE REASON FOR AND RELATED REGULATIONS ON THE TORT LAWOF THE PEOPLE’S REPUBLIC OF CHINA,at 75(Compiled by the Commission of Legislative Affair of the NPC Standing Committee,Peking University Press,2010).
20 WANG LIMING,supra note 15.
21 In July 2016,based on the reality of IPR trialing and new conditions,tasks and demands,the SPC raised the basic judicial principles of“judicial dominance,stringent judicial protection,classified measures and proportion harmony”in the trialing of IPR,making stringent judicial protection,deepening of the reform,enhancement of the system and integrated planning as the focal point and advancing the modernization of the IPR system and judicial ability.
22 For instance,Su Dongpo is a household literature of Song Dynasty.His given name is Su Shi,his courtesy name is Zizhan and he styled himself as Dongpo Jushi.
23 For instance,the Hong Kong novelist Jin Yong enjoys a great fame in China.Compared to his pseudonym,his real name Zha Liangyong’s popularity is limited.
24 Names including pseudonyms and stage names which enjoy market popularity and are well-known to the concerned public could be classified to the“name”stipulated in art.5,para.3 of the Anti-Unfair Competition Law.
25 Article 4 of the General Principles of the Civil Law:“In civil activities,the principles of voluntariness,fairness,making compensation for equal value,honesty and credibility shall be observed”.
26 INTERPRETATION ON TRADEMARK LAW OF THE PEOPLE’S REPUBLIC OF CHINA,at 19(Lang Sheng as the Editor-in-Chief,Law Press China,2013).
27 THE SPC’S INTERPRETATION TO AND ITS APPLICATION OF IPR,at 178(Tao Kaiyuan as the Editor-in-Chief,Law Press China,2016).
28 LIANG HUICHENG,GENERAL REGULATION OF CIVIL LAW,at 50(Law Press China,2011).
29 Article 18 of the Regulation on Hearing the Administrative Cases of the Registration and Affirmation of Trademarks:“The prior right stipulated by article 32 of the Trademark Law includes the civil rights enjoyed by the parties before the date of the application on the controversial trademarks and other lawful right worthy for protection.The prior right lost before the registration will not influence the registration of the trademark”.
30 He Xiaorong,Making the Justness in Single Cases Advocate the Rule of Law,People’s Daily,December 12,2016.

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