我国驰名商标保护中存在的几个问题及其完善

On several drawbacks of protection for well-known trademark and its perfection

我国《商标法》对驰名商标保护的规定主要集中在第 13条和第 41条 ,本文认为前述规定存在以下几个问题 :其一 ,商标法为鼓励当事人注册 ,以加强对商标的管理 ,规定未注册驰名商标不能实行跨类保护 ,有以工具理性取代自然理性之嫌 ,值得检讨 ;其二 ,在恶意注册他人驰名商标场合不规定撤销期 ,有违民法一般法理 ,在实践中亦弊端甚多 ,如容易滋生新的恶意和导致注册秩序的不稳定 ;其三 ,缺少“先用权”制度和赋予在先驰名商标所有人对后注册人在撤销期使用商标行为主张不当得利返还请求权制度。针对前述立法不足 ,本文提出了相应完善建议。

In Trademark Act of China, the regulations of protection for well-known trademark is centralized in articles 13 and 41. But the author thinks that there are several drawbacks existing in the mentioned two articles as follows: First in order to stimulate the owners to register, the Act has denied the unregistered well-known trademark to get safeguard on non-competing goods. The defect is obvious because it has wronged to replace natural reason with instrumentalism. Second, the Act doesn't set a deadline for the owners of the prior well-known trademarks to quash another person's later deliberate registration, which has broken the principle of civil law. Finally, our trademark Act has omited two important regulations: one is 'priority', the other is 'right of claim for restitution of unjust benefits.', Based on the preceding analysis, this article has preferred some corresponding suggestions to perfect our law.