| 摘要註: |
企業經營者對於足以代表商品或服務之表徵，係屬於智慧財產之一種，而為其為營業所製出之智慧的結晶，經營者均係付出至多心血、成本始能產出，並經營達到公眾所週知之程度，然而一經公開，勢將引發風潮及競相模仿。在現今自由競爭的社會中，適度之模仿應予肯定，不應嚴格禁止，因模仿乃創作的泉源。然過度模仿則會成為仿冒行為，造成榨取他人智慧之成果，而使別人混淆，形成進而影響大眾公益，乃為法律所禁止。尤以近年來，對於智慧財產權之重視，對於仿冒之行為更是嚴格禁止。惟適度模仿與過度模仿之界線何在，法律對於智慧財產權保護勢將影響其中的界限，致使在判斷模仿之程度而劃分有無違法之虞。 我國對於智慧財產權之保護賦予權利人專用及排他之法律效力，此於專利法、商標法、著作權法等法內有所規範，因而對於智慧財產被仿冒行為亦有禁止規定。然由於仿冒行為易引起消費者混淆，而影響市場之競爭秩序，屬於不公平競爭行為，因此於公平交易法本於維護競爭秩序之功能，在規範不公平競爭之內容亦有適用，尤以公平交易法第20條規定，就商品或服務之表徵之仿冒行為，視為不正競爭之手段，然而究竟商標法與公平交易法中對於欲保護之範圍有無重疊，及如何適用之問題，實有探討之必要。再者，近日商標法大翻修，於新修法內，立法者對於商標之保護範圍擴大，是否亦再次影響公平交易法第20條之適用，因此本文擬對於新舊商標法與公平交易法之適用上重疊競合之處，予以探討。 Enterprise operators are the representation enough standing for some goods or services, and belong to a sort of intellectual properties, while the crystallization (results) of the wisdom produced by them for their business operation can only be generated by operators through considerable painstaking effort and cost, and reaches the degree as widely known by the general public through operations, however, once disclosed, will surely lead a trend or rush and emulous imitation. In the present society of free competition, a moderate imitation should be admitted, and should not be strictly prohibited, as imitation is just a source of creation. However, an excessive imitation will become an act of counterfeiting, result in a steal of the result of others’ wisdom, and confuse others, as well as affect public welfare, and is forbidden by law. Especially in recent years, since much attention has been paid to intellectual property rights, acts of counterfeiting have been strictly forbidden. Only where is the boundary between a moderate imitation and an excessive imitation, the protection of intellectual property rights by law will certainly affect the boundary therein, and lead to the determination of a violation or non-violation of law by judging the degree of imitation. As regards the protection of intellectual property rights, China invests rights-holders with proprietary and exclusive legal rights, for this the patent law, trademark law, and copyright law etc have certain specifications, and thus there are also prohibitive regulations for acts of counterfeiting intellectual property rights. However, since acts of counterfeiting tend to confuse consumers, and thus affect the competition order of markets, are unfair competition behaviors, therefore the fair trade law is designed for the function of maintaining the competition order, and also applied in regulating the contents of unfair competition behaviors, especially the article 20 of the fair trade law prescribes that acts of counterfeiting the representation of goods and services are regarded as the means of unfair competition, yet it is really necessary to probe whether there are any repetitions in the trademark law and the fair trade law as regards the extent to be protected as intended, and how to apply them. Furthermore, the trademark law was overhauled recently, and in the newly revised law, legislators think whether the expansion of the scope of protection for trademarks will again affect the application of the article 20 of the fair trade law too, therefore this paper is to probe into the overlaps and concurrences in the application the new and old trademark laws and the fair trade law. |