论商标抢注的过错构成与责任分配

Constitutions of Fault and Distribution of Responsibilities about the Trademark Rush-registered

近年来商标抢注现象在我国呈愈演愈烈的趋势,引起了社会各界的广泛关注。长期以来我们在追究抢注行为的责任时,总是将全部的谴责和法律责任归于抢注者。然而事实上,这种归责方式不但难以有效地遏制当前的抢注现象,而且有违公平公正的理念。笔者认为抢注现象的出现并非抢注者的一人之过,被抢注者、商标主管部门乃至立法者在这一问题上都负有不可推卸的责任。因此,我们应当从深层挖掘抢注现象出现的原因,重新建立商标抢注责任在抢注者、被抢注者、商标主管部门以及立法者之间的分配机制。

In recent years, the trend of the trademark are rush-registered has become more and more serious, which has aroused widespread concern of the general public, For a long time, when the liability of rush-registered is investigated and fixed, all the blame and the legal responsibility are attributable to the rush-registrant. However, this kind of liability doctrine not only is difficulty to prohibit the current trend effectively, but also violates the idea of fair and impartial, The author considers that besides the rush-register, the rush-registrant and the competent authority, even the legislators should bear the unshakable responsibilities, so we should deeply analysis the causes of it and reconstruct the distribution mechanism among them.