英国商誉保护对我国商标专用权保护之借鉴

Goodwill Protection in UK and the Implication to the Trademark Exclusive Right in China

英国仿冒之诉所保护商誉以声誉为基础,以商业吸引力为核心,以本土消费者为对象,商标是商誉的象征或标签。我国商标专用权为行为自由权,其客体为核定商品范围内的注册商标:商标不仅区分商品来源,更吸引消费者购买,商标为形,商誉为魂,并在商标功能上得以体现。双同情形下,直接构成侵权,并以商誉受损作为赔偿依据;非双同情形下,商标侵权以混淆可能为前提,实质是认定不当竞争行为利用了注册商标在双同范围内的吸引力所向外辐射出的影响力。

The goodwill directly protected by the passing off litigation in UK is based on reputation; its core value is commercial appeal and the object is local consumers. Trademark is the symbol or label of goodwill. The exclusive right of registered trademark in China is actually the right of free behavior, which controls the registered trademark in the approved range of goods or servers. Trademark not only distinguishes the sources of goods, but also attracts consumers to buy. Trademark is the form, and the goodwill is the soul, which are manifested by trademark^ function. Where both the trademark and the goods are identical, direct infringement is established. The compensation is based on the damage of goodwill. Where only the trademark or the goods are identical, trademark infringement is established based on the confusion possibility. In fact, this is to ascertain whether the infringer has implemented unfair competitive behavior in order to take advantage of the influence which is radiated outward by the attractive power of the goodwill established in the registered trademark.