在先著作权主张中“接触”的审查与判断

Reviewing and Judging the Definition of "Access to" in Prior Copyright Claims

申请注册的商标不得与他人在先取得的合法权利相冲突。如果商标注册人与商标设计者为同一主体或者取得了商标设计者的授权,就不会产生著作权与商标权的权利冲突的问题;如果未经权利人许可,擅自将他人享有著作权的作品申请注册商标或者作为商标加以使用,就会造成与他人著作权的冲突。以著作权作为在先权利进行主张的,需要证明诉争商标与其所享有著作权的作品构成实质性相似,还要证明诉争商标注册人接触或者有可能接触到所享有著作权的作品。其中,在判断是否接触或可能接触时,需要结合作品的独创性、日常经验等因素综合判断。

Trademarks in application for registration shall not be in conflict with the prior legitimate rights obtained by others. Where the registrants of trademarks are the same as the designers of trademarks or the registrants have obtained the authorization of the designers of the said trademarks, there will be no conflict of rights between the copyright and the trademark right; in case of application for registration of trademarks with regard to the works where others have copyright or use the said works as trademarks without the permission of the holders of rights, it will give rise to a conflict with the copyright of others. In case of filing a claim based on the copyright as the prior rights, the claimant shall prove the substantial similarity between the trademarks in dispute and the works where the claimant has copyright and that the registrant of the trademarks in dispute has access to or possibly has access to the said works. The originality of the works, daily experience and etc. shall be taken into consideration as for determining whether the registrant has access to or possibly has access to the said works.