外文翻譯----淺談馳名商標(biāo)之淡化與反淡化

1、<p><b>　　1外文參考文獻(xiàn)譯文</b></p><p>　　the well-known trademarks and dilute anti-diluted</p><p>　　First, well-known trademarks Summary </p><p>　　Well-known trademarks is a

2、 long-term use, in the market enjoy a high reputation, known for the relevant public and by certain procedures that the trademark. Since the "Paris Convention" was first introduced the concept of well-known tra

3、demarks, the well-known trademarks for special protection legislation has become the world trend. </p><p>　　Paris Convention stipulates: all of the members were identified as the well-known trade marks, or r

4、egistered First, the first to ban others, and the other is to prohibit the use of others with identical or similar logo. Trips further provides: 1, the Paris Convention for the special protection and extension of the ser

5、vices of well-known trademarks, 2, the scope of protection does not extend to prohibit similar goods or services with the well-known trademarks for use on the same or similar logo, </p><p>　　National legisla

6、tion on the practice, the well-known trade marks that standards vary, often based on specific trade mark promotion of public awareness of related areas, logo merchandise sales and the scope of national interests, and oth

7、er factors identified. From an international treaty to protect the well-known trademarks mind, that well-known trade marks and protection of well-known trade marks are closely linked. </p><p>　　Second, the

8、well-known trademarks protected mode </p><p>　　On the protection of the main trademarks of relative and absolute protectionism two models. </p><p>　　The former refers to ban others with well-kno

9、wn trademarks identical or similar trademark with the trademark owner the same or similar industries in the registration or use of similar goods in non-use of the same or similar trademarks is permitted, "the Paris

10、Convention "That is, relative to protectionism. </p><p>　　While the latter refers to ban others in any industry, including the well-known trade mark goods with different or similar to those in the indus

11、try to register with the well-known trade marks and the use of the same or similar trademarks, TRIPS agreement that is taken by the expansion of the absolute protectionism. </p><p>　　In simple economic form,

12、 as specified by the trade mark goods at a single, specific trade mark goods and the link between more closely. With, a valuable well-known trademarks have been more and more use of different types of commodities, which

13、are among the types of goods on the property may be totally different, in a trademark associated with the commodity groups and the relative weakening of trade marks Commodity producers and the relative isolation. Not wel

14、l-known trademarks such as cross-cat</p><p>　　In view of this, in order to effectively prevent the reputation of well-known trademarks, and the identification of significant features and advertising value by

15、 the improper use of the damage, many countries on the implementation of a well-known trademarks is protectionism, which prohibits the use of any products on the same or with the well-known trademarks Similar to the trad

16、emark. </p><p>　　TRIPS Agreement Article 16, paragraph 3 states: Paris Convention 1967 text, in principle, applicable to the well-known trademarks and logos of the commodities or services are not similar goo

17、ds or services, if not similar goods or services on the use of the trademark will be Suggest that the goods or services with the well-known trademarks on a link exists, so that the interests of all well-known trademarks

18、may be impaired. </p><p>　　Third, the well-known trademarks diluted </p><p>　　The protection of trademark rights, there are mainly two: one for the confusion theory, a theory for desalination. &

19、lt;/p><p>　　The main traditional trademark protection for trade marks the difference between functional design, and its theoretical basis for the theory of confusion. In summary, which is to ensure that the tra

20、demark can be identification, confirmation and different goods or services different from the significant features, to avoid confusion, deception and E Wu, the law gives first use of a person or persons registered with e

21、xclusive rights, which prohibits any Without the permission of the rights to use m</p><p>　　With the socio-economic development and commercialization of the continuous improvement of the degree, well-known t

22、rademarks by the enormous implication for the growing commercial value have attracted the attention of people. Compared with ordinary marks, bearing well-known trademarks by the significance and meaning beyond the tradem

23、ark rights to the general, and further symbol of product quality and credit, contains a more valuable business assets - goodwill. Well-known trade mark rights of peo</p><p>　　When the mark beyond the role of

24、 this feature to avoid confusion, then, this factor is obviously confused and can not cover everything, and other factors become as important as or more important. Thus, in theory confusion on the basis of further develo

25、pment of desalination theory. </p><p>　　Trademark Dilution (dilution), also known as trademark dilution, is one of trademark infringement theory. "Watered down", according to the U.S. "anti-fe

26、deral trademark law dilute" means "regardless of well-known trade mark rights and the others between the existence of competition, or existence of confusion, misunderstanding or the possibility of deception, re

27、duce and weaken the well-known trademarks Its goods or services and the identification of significant capacity of the act. " In China, som</p><p>　　1927, Frank ? Si Kaite in the "Harvard Law review

28、s" wrote the first trademark dilute theory. He believes that people should not only be trademarks of others prohibit the use of the mark, he will compete in the commodity, and should prohibit the use of non-competit

29、ive goods on. He pointed out: the real role of trade marks, not distinguish between goods operators, but satisfied with the degree of difference between different commodities, so as to promote the continuous consumer pur

30、chase. From the </p><p>　　Since then, the Intellectual Property Rights Branch of the American Bar Association Chairman Thomas ? E ? Si Kaite Smith on the theory made a further elaboration and development. He

31、 said: "If the courts allow or laissez-faire 'Rolls Royce' restaurants, 'Rolls-Royce' cafeteria, 'Rolls-Royce' pants, 'Rolls-Royce' the candy, then not 10 years, ' Rolls-Royce 

32、9;trademark owners will no longer have the world well-known trademarks. " </p><p>　　Si Kaite in accordance with the theory of well-known trade marks have faded because of the effect of non-rights holder

33、s with well-known trademarks in the public mind the good image of well-known trademarks will be used in non-competitive goods, so as to gradually weaken or reduce the value of well-known trademarks, That is, by the well-

34、known trademarks have credibility. Trademark tag is more significant or unique characteristics, which in the public mind the impression that the more deep, more i</p><p>　　In practice, trademarks diluted sha

35、re a wide range of operating methods, such as: </p><p>　　A well-known trademarks of others will still use as a trademark, not only in the use of the same, similar to the goods or services. For example, house

36、hold appliances, "Siemens" trademark as its own production of the furniture's trademark. </p><p>　　2. To other people's well-known trademarks as their corporate name of the component. Such

37、as "Haier" trademark for the name of his restaurant. </p><p>　　3. To the well-known trademarks of others as the use of domain names. For example, watches trademark "OMEGA" registered the

38、domain name for themselves (www.OMEGA.com). </p><p>　　4. To the well-known trademarks of others as a commodity and decorating use. </p><p>　　5. Will be others as well-known trade marks of goods

39、or services using the common name. For example, "Kodak" interpreted as "film, is a camera with photographic material", or "film, also known as Kodak,……" This interpretation is also the mark

40、of the water down. If the "Kodak" ignored the trademark owner, after a period of time, people will Kodak film is, the film is Kodak. In this way, the Kodak film-related goods has become the common name, it as a

41、 trademark by a significant, identifiable on li</p><p>　　U.S. "anti-diluted Federal trademark law" before the implementation of the Federal Court of Appeal through the second from 1994 to 1996 case

42、, identified the following violations including the Trademark Dilution: (1) vague, non-means as others in similar goods not on Authorized the use of a trademark so that the sales of goods and reduce the value of trademar

43、ks or weakened (2) pale, that is because of violations related to the quality, or negative, to demonize the acts described a trademark goods</p><p>　　The majority of our scholars believe that the well-known

44、trademarks diluted There are two main forms: watered down and defaced. The so-called dilute the people will have no right to use the same or similar trademark with the well-known trademarks used in different types of com

45、modities, thus making the mark with the goods weakened ties between the specific acts the so-called defaced is that people will have no right to use the same Or similar marks for the well-known trade marks will have to b

46、eli</p><p>　　Some scholars believe that the desalination also refers to the three aspects of well-known trademarks damage. First, in a certain way to demonize the relevant well-known trademarks; Second, some

47、 way related to well-known trademark dark; Third is the indirect way so that consumers will distort trade mark goods for the general misunderstanding of the name. </p><p>　　In general, can be diluted in the

48、form summarized as follows: </p><p>　　1, weakening </p><p>　　Weakening is a typical diluted form, also known as dark, is that others will have some visibility in the use of a trademark is not th

49、e same, similar to the goods or services, thereby weakening the mark with its original logo of goods or services The link between, weakening the mark was a significant and identifiable, thus bearing the trade mark by the

50、 damage caused by acts of goodwill. Weakening the mark of recognition of the significant damage is serious, it can be the recognition of trademark </p><p>　　First, the weakening of the identification is the

51、weakening and lower. Any unauthorized person, others will have some visibility in the use of a trademark is not the same, similar to the goods or services, will reduce its recognition of. But consumers were referred to t

52、he mark, it may no longer think of first is the original goods or services, not only is the original or goods or services, consumers simply will not even think of goods or services, but the Trademark Dilution of goods Or

53、 services.</p><p>　　Weakening of the mark is significantly weakened and the lower. Mark is significantly different from other commercial trademark marked characteristics. A certain well-known trademarks, whi

54、ch in itself should be a very significant, very significant and can be quickly and other signs of its own separate. However, the Trademark Dilution of the same or similar trademarks used in different goods or services, s

55、o that was the trademark and other commercial marked difference in greatly reduced, to the de</p><p>　　Of course, regardless of the weakening of the mark was a significant or identifiable, are the ultimate i

56、mpact of the mark by the bearer of goodwill. Because the trade mark is the carrier of goodwill, the mark of any major damage, the final performance for all bearing the trade mark by the goodwill of the damage.</p>

57、<p>　　2, tarnished </p><p>　　Means others will have some well-known trademarks in the use of the good reputation of the trademark will have to belittle, defaced role of the goods or services on the act

58、. Contaminate the trademarks of others, is a distortion of trade marks to others, the use of the damage, not only reduced the value of the mark, even on such values were defaced. As tarnished reputation is a trademark of

59、 damage, so tarnished included in the diluted acts, is also relatively accepted view. Moreover, in the field</p><p>　　3, degradation </p><p>　　Degradation is due to improper use of trademarks, t

60、rade mark goods for the evolution of the common name recognition and loss of function. Trademark Dilution degradation is the most serious kind. Degradation of the event, will completely lose their identification marks, n

61、o longer has the distinction function as the common name of the commodity. </p><p>　　Fourth, protection against dilute </p><p>　　Based on the well-known trademarks dilute the understanding, and

62、accompanied by a serious weakening of well-known trademarks, all countries are gradually legislation to provide for the well-known trademarks to protect anti-diluted. There are specific models: </p><p>　　1,

63、the development of special anti-dilute the protection of well-known trademarks </p><p>　　The United States is taking this protection on behalf of the typical pattern. </p><p>　　1995, in order to

64、 prevent lower dilute "the only representative of the public eye, the unique image of the trademark" to protect "the trademark value of advertising," the U.S. Congress passed the National reunificatio

65、n of the "anti-federal trademark law watered down", so as to the well-known trademarks All provide the unified and effective national anti-dilute the protection. </p><p>　　U.S. anti-diluted in trad

66、emark protection has been added a new basis for litigation, which is different from the traditional basis of trademark infringement litigation. Trademark infringement of the criteria is confusing, the possibility of dece

67、ption and misleading, and the Trademark Dilution criteria is unauthorized to others well-known trademarks of the public to reduce the use of the trademark instructions for goods and services only and in particular of Fee

68、lings. It is clear that the U.S. la</p><p>　　2, through the Anti-Unfair Competition Law Protection </p><p>　　Some countries apply anti-unfair competition law to protect famous trademarks from be

69、ing watered down. Such as Greece, "Anti-Unfair Competition Law," the first one: "Prohibition of the Use of well-known trademarks in order to take advantage of different commodities on the well-known tradem

70、arks dilute its credibility was significant." Although some countries in the Anti-Unfair Competition Law does not explicitly prohibits trademark faded, but the Trademark Dilution proceedings, the application of</

71、p><p>　　3, through or under well-known trademark protection within the scope of trademark protection </p><p>　　Most civil law countries is this way. 1991, "the French Intellectual Property Cod

72、e," Di Qijuan trademark law section L.713-5 of the provisions that: not in similar goods or services on the use of well-known trade marks to the trademark owner or a loss caused by the improper use of trademarks , A

73、gainst people should bear civil liability. </p><p>　　Germany in 1995, "the protection of trademarks and other signs of" Article 14 also stipulates that: without the consent of the trademark rights

74、of third parties should be banned in commercial activities, in and protected by the use of the trademark does not like similar goods or services , And the use of the trademark identical or similar to any signs. </p>

75、;<p>　　4, in the judicial precedents in the application of anti-dilute the protection of </p><p>　　In some countries there are no clear legislative provisions of the anti-dilute well-known trademarks,

76、 but in judicial practice, they are generally applicable civil law on compensation for the infringement of the debt to protect the interests of all well-known trademarks, through judicial precedents to dilute the protect

77、ion of applicable anti.</p><p>　　China's well-known trademarks in the protection of the law did not "water down" the reference, but on the substance of the relevant legal provisions, protection

78、 of anti-diluted. 2001 "Trademark Law" amendment to increase the protection of well-known trademarks, in particular, it is important to the well-known trademarks have been registered to conduct cross-category p

79、rotection. Article 13 stipulates: "The meeting is not the same as or similar to the trademark application for registration of good</p><p>　　But needs to be pointed out that this provision does not mean

80、that China's laws for the well-known trademarks has provided an effective anti-dilute the protection. "Trademark Law" will prohibit only well-known trademarks and trademarks of the same or similar use, with

81、out the same or similar goods not on the behavior, but the well-known trade marks have faded in various forms, such as the well-known trademarks for names, domain names, such acts Detract from the same well-known tradema

82、rks destroye</p><p>　　It must be pointed out that the trade mark that should be paying attention to downplay acts of the following: </p><p>　　1, downplay acts are specifically for the well-known

83、 registered trade marks. </p><p>　　Perpetrators diluted one of the main purpose is the free-rider, using the credibility of well-known trademarks to sell their products, and general use of trademarks do not

84、have this value. That acts to dilute limited to well-known trademarks, can effectively protect the rights of trademark rights, have not excessively restrict the freedom of choice of logo, is right to resolve the conflict

85、 right point of balance. "Trademark Law" will be divided into well-known trademarks have been registered and</p><p>　　2, faded in the different categories of goods and well-known trademarks for use

86、 on the same or similar logo. </p><p>　　If this is the same or similar goods with well-known trademarks for use on the same or similar to the logo should be in accordance with the general treatment of tradem

87、ark infringement. There is also a need to downplay the use of the tags are similar to a well-known trademarks and judgments. </p><p>　　3, not all the non-use of similar products on the well-known trade marks

88、 and logos of the same or similar circumstances are all faded. </p><p>　　When a trademark has not yet become well-known trademarks, perhaps there are some with the same or similar trademarks used in other ty

89、pes of goods on. In the well-known trademarks, the original has been in existence does not constitute a trademark of those who play down. </p><p>　　4, acts that play down the perpetrator does not need to con

90、sider the subjective mental state. </p><p>　　Regardless of their out of goodwill or malicious, intentional or fault, is not watered down the establishment. But the acts of subjective mental state will assume

91、 responsibility for its impact on the manner and scope. Generally speaking, if the perpetrator acts intentionally dilute the responsibility to shoulder much weight, in particular, bear a heavier responsibility for damage

92、s, if the fault is the commitment will be less responsibility. If there are no mistakes, just assume the responsibilit</p><p>　　5, due to anti-faded to protect well-known trade marks with a specific goods or

93、 services linked to well-known trademarks a long time widely used in a variety of goods, will inevitably lead to trademark the logo of a particular commodity producers play down the link, well-known trademarks A unique a

94、ttraction to consumers will also be greatly reduced. So that should not be watered down to conduct a source of confusion for the conditions of goods, after all, not all the water down will cause consum</p><p&g

95、t;　　1. Zheng Chengsi: "Intellectual property law", legal publishers 2003 version. </p><p>　　2. Wu Handong editor: "Intellectual Property Law," China Politics and Law University Press 2002

96、 edition. </p><p>　　3. Susan. Sela De: "The United States Federal trademark law dilute the anti-legislation and practice," Zhang Jin Yi, contained in the "Law on Foreign Translation" 1998

97、 No. 4. </p><p>　　4. Kong Xiangjun: "Anti-Unfair Competition AFP theory," People's Court Press, 2001 edition. </p><p>　　5. Liu Ping, Qi Chang: "On the special protection of fa

98、mous trademarks", in "law and commercial" 1998 No. 6. </p><p>　　6. Well-Tao, Lu Zhou Li: "On the well-known trademarks to protect the anti-diluted", in "Law" 1998 No. 5. &l

99、t;/p><p>　　2 外文參考文獻(xiàn)原文</p><p>　　淺談馳名商標(biāo)之淡化與反淡化</p><p><b>　　一、馳名商標(biāo)概述</b></p><p>　　馳名商標(biāo)是指經(jīng)過長期使用，在市場上享有較高聲譽(yù)，為相關(guān)公眾所熟知，并經(jīng)一定程序認(rèn)定的商標(biāo)。自《巴黎公約》首次引入馳名商標(biāo)的概念后，對馳名商標(biāo)進(jìn)行特殊保護(hù)已成為世