“山寨”老字号商标及不正当竞争纠纷的司法裁判研究

A Study on Judicial Judgment of Counterfeit Time-Honored Trademark and Unfair Competition Disputes

随着产权观念的蔓延,一些长期中断实体经营的老字号被无历史渊源的个人和企业注册为商标、企业名称,成为商家故事营销的主角。司法案件中出现的"山寨"老字号纠纷,市场根源在于虚构历史品牌战略的盛行。现以司法实践中的典型案件为研究对象,引入跨学科的真实性概念,以此为视角探讨"山寨"老字号商标、不正当竞争案件中法院对于老字号渊源真实性的判断,进行分类比较后认为,司法中对"山寨"老字号应当以客观真实而非建构真实作为评判标准,并建议从源头上对老字号商标抢注行为予以限制。

Nowadays, the concept of property righthas already taken root in peopled mind, some time- honored brands which go out of business for ages are registered as trademarksor company names by people with no historical connectionto the brands. Disputes over the registration of counterfeit time-honored brands in the judiciary cases are derived from the prevalence of the strategy, i. e. to fabricate a historic brand. This paper researches the typical cases in judicial practice, introduces the concept of authenticity based on interdisciplinary theory. From this perspective, after the classification and comparison of couifs judgment on the authenticity of brands origin in the cases of counterfeit and unfair competition, the paper puts forward that the judgment on counterfeit time-honored brand should be subject to the objective reality rather than fabricated authenticity, and restrictions should be imposed to prevent the malicious registration of others, time-honored brand.