论“相同或类似商品(服务)”的认定——兼评“非诚勿扰”案

The Determination of Identical or Similar Goods(Services): A Comment on the Case of “Fei Cheng Wu Rao”

与认定"类似商品(服务)"采用主观标准不同,认定"相同商品(服务)"应采用客观标准,即以分类表为依据。同时,由于分类表对服务难以做到精确界定,对"相同服务"应当采用严格解释。在认定"类似商品(服务)"时,应考虑在先商标的显著性和知名度。鉴于《非诚勿扰》电视节目与"非诚勿扰"商标核准注册的婚介与交友服务在目的、内容、方式和对象方面都有很大差异,且"非诚勿扰"商标相对于婚介与交友服务的显著性和知名度都较低,"非诚勿扰"案中的电视节目与婚介与交友服务不是"相同服务"或"类似服务"。

In a contrast to the subjective standard of determination of similarity of goods or services, the standard of determination of identity of goods or services should be objective. It means that the Nice Classification is the ground for determination. Meanwhile, since it is very difficult to define precisely services in the Classification, specifications for services should be interpretedstricfly. In addition, the distinctive character and its reputation of the earlier trade mark should be taken into account when determining whether there exists the similarity between the goods or services covered by the two trademarks. Compared to marriage agencies and dating service, the television program named ＂Fei Cheng Wu Rao＂ has different purpose, content, target consumer and the way of operation. The earlier registered trademark ＂Fei Cheng Wu Rao＂ has low distinctive character and reputation on marriage agencies and dating service. Therefore, the television service through the program named ＂Fei Cheng Wu Rao＂ is not identical or similar to marriage agencies and dating service.