与TRIPS协议相协调,确立我国商标侵权归责原则

Conforming to TRIPS and establishing the principle of tort liabilities' contribution in trade mark

新商标法的制订出台虽取得了长足进步,但对于商标侵权民事责任的归责原则却未做明文规定。随着我国加入WTO,这已成为一个亟待解决的问题。本文通过剖析侵权行为法、知识产权法领域对该问题的争论和TRIPS协议相关规定,以及我国商标法立法及司法实践,建议我国商标法应确立过错责任原则和无过错责任原则相结合的二元归责原则体系。

The new trade marks law of China made a lot of progresses, but it is a pity that there are still not precise rules about the principle of tort liabilities' contribution. With China's entry into WTO, this problem has become greedy to solve. This dissertation tries to study the problem from the following aspects: Firstly, the arguments about the principle of liabilities' contribution in the field of tort law and my analyses; Secondly, the arguments about the principle of liabilities' contribution in the field of intellectual property law and my analyses; Thirdly, the analyses about the principle of liabilities' contribution in TRIPS; The fourth, the analyses about our new trade marks law's relative rules and our justice.Finally, result in some legislative advices that our trade marks law should establish negligence liability and strict liability principle。