论商标法与反不正当竞争法的适用选择

Study on Application of the Trademark Law or Anti-unfair Competition Law

我国商标法和反不正当竞争法均对假冒他人注册商标行为作出规定,两法之间存在法条竞合关系,于是会发生适用法律的选择问题。通过对案例样本的实证分析,近两年来司法实践中商标侵权及不正当竞争纠纷案件都统一适用商标法规制假冒注册商标行为。反不正当竞争法与商标法之间不是一般法与特别法的关系,而是一种并列关系,行政处罚应当基于"重法优于轻法"原则,选择适用商标法,权利人在民事赔偿案件中可以自由选择适用法律。

Both Trademark Law and Anti-unfair Competition Law regulate the behavior of counterfeiting registered trademarks, which is concurrence of legal provisions relationship between the two laws, leading to problems of selecting law to apply. Through empirical research of sample cases, all the cases involving trademark infringement and unfair competition disputes in recent two years were applied article 57 of Trademark Law to regulate the behavior of counterfeiting the trademark. The relationship of Trademark law and Anti-unfair Competition Law is not a general law relationship with the special law but a kind of parallel relationship. The infringed have the fight to choose applicable law, but the law-enforcement officials have to be based on the principle of ＂severe law being prior to slight law ＂ to refer to Trademark Law.