商标权权利穷竭研究

解决商标权产品的平行进口问题应适用商标权的国际穷竭原则 ,该原则与商标及商标权的基本理论具有内在的一致性。商标权的地域性特点不能否定国际穷竭原则的合理性。同时 ,国际穷竭原则的适用也有利于市场的开放、贸易壁垒的消除、货物的自由流动。     

在商标领域，是通行权利穷竭还是权利限制？

商标权穷竭原则在我国理论界和司法实践中已引起相当程度的混乱。商标权的穷竭并非是商标权人的商标使用权的穷竭，而是以商标控制商品流遗的权利的穷竭或商标商品销售权的穷竭。严格来说，在商标权领域不存在权利穷竭的问题。     

商标权国际穷竭原则研究

本文对商标权国际穷竭原则进行了较为详尽的阐述,指出特定商品上的商标权在产品移转后在全球范围内穷竭,而所穷竭的权利包括了具有商标关联关系的主体在各个法域内的商标权,揭示了商标权国际穷竭原则的实质并对国际穷竭否定论进行了反否定,界定了“特定商品上的商标权”的概念,批驳了商标权的地域穷竭理论,最后对默示许可理论和国际穷竭原则进行了比较分析。     

商标平行进口“真品”例外简介

商标权的穷竭不是绝对的。平行进口的商品是由商标权人或经其同意投放市场的“真品”,在未经商标权人授权或同意的情况下被进口至另一国家。因此,商标权穷竭的例外的适用,主要是考察平行进口商品究竟是否“真品”以及怎样才属于“未经同意”的情况。 对于权利穷竭的限制,美国的判例法表现为对平行进口商品的实质性差异(material difference)审查,在欧盟则体现在商标法一号指令第7条第2款,即商标所有     

欧盟知识产权保护与货物自由流动原则

知识产权保护与欧盟内部市场的货物自由流动存在内在的冲突。欧洲法院在一系列的判例中阐明了解决它们之间冲突的三项原则 ,即知识产权的存在与使用二分法原则、权利用尽原则和特定主题原则。其中二分法原则构成了解决冲突的法律基础 ,权利用尽原则是具有普遍意义的核心原则 ,而特定主题原则是对权利用尽原则适用于不同知识产权时产生的局限性的补充。     

商标权穷竭原则质疑

权利穷竭原则是知识产权法中的一个重要原则 ,它在传统知识产权———专利、版权和商标三大领域得到广泛认可。人们运用该理论来分析、解决实践中出现的问题。但是笔者通过学习研究却认为 ,在商标权领域并不存在权利穷竭问题。理论界所说的商标权穷竭至多可看作是对商标权的一种限制。     

欧共体商标权利国际用尽原则演变过程及对我国的启示

自欧共体成立后的几十年时间内 ,由于共同体有关商标法律规定不明确 ,各成员国对于商标权利共同体外部是否采用权利用尽原则 ,各个时期有不同的理解。 1998年欧洲法院一个判例明确确立了共同体商标在共同体外不适用权利用尽原则 ,从而正式统一了各成员国在这个问题上的做法。我国现有的法律尚未确立商标权利是否采取国际用尽原则 ,酝酿中的商标法修正方案可以从欧共体解决这一问题的历史及欧洲法院判决的依据中得到启示。     

欧洲共同体商标权利用尽原则对平行进口商品的法律适用

海牙上诉法院在ParfumsChristianDior,SAv.Etos ,BV案中对来自共同体市场外的商标商品的平行进口问题进行了解释。在本案的判决中 ,荷兰法庭适用了《欧洲商标指令》(theEuropeanTradeMarksDirective)第 7条 ,《统一布鲁克斯商标法》(theUniformBeneluxMarksAct)第 13条A款 ,《欧洲共同体条约》有关商品自由流动条款以及欧洲法院现存的判例法。荷兰法庭最关心的是各成员国商标法的充分协调问题。这在商品首次销售后商标权人权利用尽方面显得特别敏感。这是平行进口案的核心问题。     

商标权之间的权利冲突及其解决

权利冲突在商标法领域也是屡见不鲜的令人难以解决的问题.注册商标之间的权利冲突、未注册商标之间的权利冲突以及注册商标与未注册商标之间的权利冲突构成了商标权之间的权利冲突.为了衡平商标权所有人、商标使用人、消费者以及社会公共的利益,实务界和理论界针对不同的案件情况,提出了保护在先权利原则和商标共存理论两种解决商标权之间权利冲突的解决机制.本文以商标权之间的权利冲突为切入点,研究实务界和理论界对此问题的解决思路和具体方式,以促进商标权之间权利冲突现象的系统化研究.     

浅析欧盟市场一体化与商标权保护的利益平衡

近年来,欧洲法院对于平行进口商品被重新包装或重新标识的判例,反映了知识产权保护与欧盟内部市场的货物自由流动存在的利益冲突。为合理有效地解决该矛盾,欧洲法院在具体案件中对二者的利益权衡与取舍也不断发生着变化。本文通过阐述欧盟法院的判例及依据,分析和讨论市场一体化与商标保护的冲突,试图展现欧洲法院对此问题的新态度和新立场。     

Policy deviations,uncertainty, and the European Court of Justice

The implementation of European Union directives into national law is at the discretion of member states. We analyze incentives for member states to deviate from these directives when the European Commission may sue a defecting member state and rulings at the European Court of Justice (ECJ) are uncertain. We find that higher uncertainty about the preferences of the ECJ increases policy deviation, irrespective of whether a case is taken to court or not. If decisions of member states to deviate are interdependent, the incidence of filed cases decreases while for those policies reaching the ECJ deviations increase.     

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting-point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.     

Motive Unmasked: The European Court of Justice, the Free Movement of Goods, and the Search for Legitimacy

Abstract: In exempting from scrutiny under Article 30 EC certain measures constituting 'selling arrangements', the author examines whether the European Court of Justice in Keck and Mithouard and its progeny sought more than mere clarification of its jurisprudence on the free movement of goods. To wit, he claims that the Court was motivated by a sense of waning faith in its institutional legitimacy, initiating in Keck an attempt to more vigorously police the Community-Member State jurisdictional divide in favour of Member State prerogatives, banishing the Community judicial and legislative branches from the realm of 'selling arrangements'. After critical assessment of this hypothesis and of the Court's success, a final section queries whether the ECJ has adopted similar strategies in the Competition law and services realms.     

The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship

Abstract:  According to European Court of Justice (ECJ) case-law, the scope of application of the EC Treaty is engaged under the following conditions when the free movement of persons has been established: a cross-border connection is given; the Union citizen concerned resides legally in the host Member State; and the measure in question or the regulation has a connection with the residence or facilitates it. This condition will regularly be fulfilled since nearly every (national) regulation has a direct or indirect effect on the stay. A general link to primary or secondary law is, on the other hand, not necessary. Secondary law, however, can be significant in connection with the lawful residence. Even if partly vehement critiques have been formulated against this approach of the ECJ, it is convincing with regard to the aim of guaranteeing the free movement to European citizens.     

Quest for the Holy Grail—Is a Unified Approach to the Market Freedoms and European Citizenship Justified?

The case law of the CJEU on the economic free movement of people has departed from the traditional requirement that a nexus must be established between individual free movement and cross‐border economic activity, which has led to an extension of its scope. It is submitted that concerns with the protection of fundamental rights of European citizens are driving this process, and that the CJEU has sought to protect these fundamental rights through the market freedoms in two ways: by arguing that market freedoms are fundamental right themselves, and/or that European Citizenship has changed their normative underpinnings and status. This Article criticises both lines of argument, and defends a third: that the protection of these fundamental rights must be achieved at European level, if at all, through a conception of European Citizenship able to stand on its own.     

From Marx to Market: Lawyers,European Law,and the Contentious Transformation of the Port of Genoa

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.     

The European Court of Justice and the Rhetoric of Affirmative Action

The recent Marschall decision by the European Court of Justice (ECJ) to uphold a principle giving precedence to women for promotions in the workplace seems promising for the future of affirmative action. At first glance, this decision seems to indicate that the ECJ has taken a different path, moving away from its earlier Kalanke decision which had jeopardised further development of affirmative action in the European Union. On a closer examination, both Kalanke’s sweeping ban of preferential treatment based on gender and Marschall’s new interpretation appear as discursive replies to the same dilemma: should the Court deny the normative objective of equality contained in EC law to generate meaning, thus turning equality into a mere formal principle and rendering judicial review trivial? Or should it embrace a substantive reading of the fundamental principle of equality between men and women, thus substituting the Court judgment for that of the legislature, and subverting the limits of the ECJ’s powers? The aim of this article is to analyse the ECJ’s rhetorical response to the complexities contained in affirmative action judicial review.     

What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

Abstract The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro‐security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?     

The Rule of Reason in European Citizenship

Abstract:  This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.     

Article 81 is a defence to a plea of trade mark infringement

The Court of Appeal in Sportswear considered the interactionbetween the EU principle of free movement of goods and respectfor trade marks rights. In overturning the decision of Mr JusticeWarren to strike out an Article 81 defence to trade mark infringement,the court found that there was a sufficient nexus between theArticle 81 defence and the trade mark infringement claim.