商品改动行为的商标侵权及其认定

On Products Change of Trademark Infringement and Its Judgement

司法实践的需要永远是法律发展的动力。在商标保护实践中出现了商品改动行为,但其是否构成商标侵权则无法律依据。从商标侵权的实质看,任何侵权行为均是对商标与商品联系的破坏。无论是混淆理论,还是淡化理论,均是对这一联系的维护,反映了商标侵权的共性。从商品改动的原因以及对商品声誉的影响来判断,为销售目的影响产品声誉的改动侵犯了这一特定联系,构成商标侵权。反之,则应当允许商品改动。遵照这一判断因素规制商品改动,既有利于维护商标权益,又有利于保障商品自由流通,也是完善我国商标侵权分类的需要。

Theneeds of judicial practice are always the power for the development of law. Products change appeared in the practice of trademark protection,however, there is no legal basis to regard products change as a kind of trademark infringement. All types of trademark infringement break the connection between trademark and commodities from the perspective of the essence of trademark infringement. Not only confusion theory but also dilution theory are aiming at protecting such kind of connection, and it also reflects the general character of trademark infringement. Judging from the causes of products change and its impact on the reputation of the products, those products change which aim at selling break the connection and affect the reputation of the original products should be regarded as trademark infringement, or such kind of change should be allowed. It is helpful to protect trademark rights and the flee circulation of commodities by following such kind of criteria to regulate products change. And it is also a good way to perfect the types of trademark infringement in China.