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題名 | 商品表徵權取得要件之研究=Study on Trade Dress Standards |
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作者 | 李美惠; Lee, Mei-hui; |
期刊 | 公平交易季刊 |
出版日期 | 19970700 |
卷期 | 5:3 1997.07[民86.07] |
頁次 | 頁57-84 |
分類號 | 585.8、585.8 |
語文 | chi |
關鍵詞 | 商品; 表徵權; 公平交易法; |
英文摘要 | As technology rapidly develops and commerce and industry prosper, the types and kinds of merchandise and products available in the marketplace has in- creased and competition among them has intensified. With respect to the various types of products, marks which indicate the origin or source of the products, and which effectively advertise the quality of the products, have been an important marketing weapon with which producers battle the competition. In addition to common trademarks which operate to identify the source of the product, it is possible also that the trade dress of a product can also function as an identifying mark of the origin or source of the product. The term "trade dress" normally refers to product's packaging or container, but may also refer to product configuration. The protection of trade dress in the Republic of China, Taiwan entered a new stage after February 4, 1991 with the announcement and processing of Article 20, Item 1 of the Fair Trade Law. However, questioins regarding what constitutes trad dress, the purpose of trade dress protection, and the standards for trade dress have remained largely unanswered. For example, will novelty be a constitutional required condition for trade dress? There is no specific definition of "trade dress" in Article 20, Item 1 of the Fair Trade Law. Opinions from the Executive Yuan's Fair Trade Commission (FTC) differ on this question. However, generally, the FTC seems to have adopted a positive position on the subject. While trade dress, patnet, copyright and trademark are all forms of intellectual property, the grounds on which the rights therein and the purpose of governing the same differ. Whether or not trade dress which indentifies the origin or source of the goods shall be required to be novel, whether or not trae dress standards shall consider protection under the Patent Law, and what is the proper relationship be tween the different types of intellectual property are all questions which relate to the purpose and governing of the trade dress protection system. For this reason, these questions must be carefully researched. Secondly, both the FTC and opinions from the U.S. consider that, if a particular product's [trade dress] is distinctive, it is not necessary to trview the "Verkehrsgeltung," and the [trade dress] can naturally function as a mark for the merchandise because it is distinctive, and as such [the trade dress] can enjoy trademark protection. That is, with respect to trade dress, the condition of "Verkehrsgeltung" can be replaced by the condition of inherent distinctiveness. The question of whether such opinion is correct and whether it ignores the difference in which the rights of trade dress and trademark are grounded remain unanswered. This article will consider these questions from the point of view of intellectual property rights and relevant comments from the U.S. and Germany. Hoefully, this article will be of assistance. |
本系統之摘要資訊系依該期刊論文摘要之資訊為主。