商标侵权的判断标准:相似性与混淆可能性之关系

2013年商标法的重大修改之一是对商标侵权判断标准的修改。然而,规定商标侵权判断标准的商标法第57条第2项中的相似性与混淆可能性概念及两者之间的关系均是不清楚的。混淆可能性吸收相似性、混淆可能性内化于相似性以及以相似性为基础、以混淆可能性为限定条件成为世界各国或地区商标侵权判断标准的三种代表性立法例。从法理上看,商标的通信本质决定了混淆性商标使用会影响商标功能的发挥,商标法立法目的决定了混淆可能性是商标侵权判断的基本标准,商标权的基本权能决定了混淆可能性主要适用于商标和商品有一者不相同但近似或者类似的商标使用情形,维持公平竞争和自由竞争平衡的商标保护基本政策决定了混淆的程度是混淆可能性,相似性本身的重要性与历史传统的影响决定了相似性可以是商标侵权判断标准的重要内容。从我国商标侵权判断标准引入混淆可能性的基本动因来看,商标法第57条第2项所确立的商标侵权判断标准可以解释为以相似性为基础和前提、以混淆可能性为限定条件,而传统上内含于商标近似、类似商品、类似服务、商品与服务类似等概念的混淆可能性应该从这些概念中剥离。     

精斑检验干扰因素的研究

目的研究精斑检验中预试验与确证试验结果的关系,以及取材时间、生活习惯对确证检验结果的干扰。方法取376例阴道拭子,用酸性磷酸酶(ACP)染色法、斑点ELISA法和抗人精PSA金标试纸法检测检测精斑。结果ACP阴性时,可检出P30、精子,性生活后精斑确证检验大部分阳性检出分布在48小时以内样本中,结果经X2检验,P<0.01,差异性显著,而不同的生活习惯对P30检测具有显著性差异。结论研究结果对精斑的检验以及检材的提取具有推广应用和指导性意义。     

阴茎夜间勃起试验在伤残鉴定中的应用价值

目的探讨夜间阴茎勃起试验(nocturnal penile tumescence,NPT)在外伤后阴茎勃起功能障碍(erectile dysfunction,ED)病因诊断中的价值。方法采用妮娃夜间阴茎勃起测定系统,监测52例骨盆骨折后ED患者夜间阴茎勃起功能,并与综合检查的结果比较。结果 52例患者中,16例用NPT诊断为心理性ED,18例用综合检查诊断为心理性ED,两种方法的检出率比较无统计学差异(P>0．05)。结论利用NPT鉴别心理性ED与器质性ED,方法简单、实用,其检测准确率与综合检查无差别。     

上市公司虚假陈述行政处罚内部责任人认定逻辑之改进

在近30年的证券行政处罚实践中,我国目前已经形成了对上市公司虚假陈述内部责任人认定的全体负责逻辑和全部受处罚模式。这具有一定的合理性,但也存在改进的空间。在新《证券法》大幅度提高处罚额度的背景下,这种内部责任人认定逻辑应予改变。包含主观状态测试、义务主体测试、内部控制义务履行测试和实时监控义务履行测试的四步测试法,能很好地判断上市公司虚假陈述中董监高何者为责任人员。这是一种更具逻辑性、科学性、操作性、适用性,并包含有一定发展空间和弹性空间的理论主张,可以用来改进上市公司虚假陈述内部责任人认定的逻辑。     

The zinc test as an alternative for acid phosphatase spot tests in the primary identification of seminal traces

The value of the acid phosphatase spot test in the primary visualization and identification of seminal traces is hampered by the sensitiveness of the enzyme to biodegradation. An alternative spot test is proposed, based on the high concentration of the more stable zinc metal in seminal plasma. The proposed zinc spot test is simple and suitable for on site investigation. Although the sensitivity in fresh stains is lower than that of the acid phosphatase spot test, this is largely compensated by the lower sensitiveness to biodegradation. The specificity for semen is higher than that of the acid phosphatase spot test. In vaginal swabs it was nevertheless seen, that samples should be taken within 24 h after alleged sexual assault to give reliable results.     

Application of the hexagon-OBTI test and the RSID blood test for the determination of the post-mortem interval of bone samples

In this serial experiment, five human bones with known post-mortem intervals (PMI) in a soil environment from five different epochs (0.2 to approximately 2000 years) were tested in a blind setup with two established rapid tests for the identification of human blood traces (Hexagon-OBTI test and RSID blood test). Based on previous study results concerning the usability of the Luminol test for the first assessment of the PMI of osseous remains, the question arising was whether those test procedures, which are highly sensitive for the detection of human blood components, could also be used to narrow down the post-mortem interval. Five test series were conducted applying modified standard protocols of the manufactures. The aim was to find out whether with prior reaction steps or a prolonged time of incubation hemoglobin or its metabolites can be dissolved from the bone and positive test results can be achieved dependent on the PMI. Four test series yielded negative results for all bone samples and one test series a uniformly weak positive result. The results indicate that rapid tests based on the detection of blood are not suitable for the determination of the PMI of bone samples despite the modification of the standard protocols. Further thorough research is required to clarify the postmortem degradation of hemoglobin in bones.     

The use of error rates to predict and characterize the efficacy of presumptive field tests

From a forensic perspective, a presumptive test, one which indicates the presence or absence of a certain target material such as blood, is an invaluable tool. Among these tests, there are different specificities, sensitivities, and shelf lives. The accuracy of a test is an algebraic combination of the specificity and sensitivity of the test. Each test has limitations as given by its false positive and false negative rates. The aim of this study was to illustrate how the false positive and false negative rates are to be properly determined using a simulation study for the phenolphthalein test. New presumptive tests must be properly evaluated/validated through testing of commonly encountered household items and other potentially probative items usually found at crime scenes, however, the makeup of test sets must appropriately capture all error rates. In order to correctly use these results when the test is applied to an unknown sample recovered at a crime scene, the error rates cannot be applied directly to estimate whether or not the sample is actually the analyte of interest. In a validation study, the forensic scientist calculates the false positive rate as the p(Positive Reaction|Blood), whereas at the scene, the crime scene investigator wishes to determine the p(Blood|Positive Reaction). All crime scene investigators need to ensure that the conditional is not transposed when interpreting such results. Furthermore, this work provides a model for the assessment of a multiple test diagnostic system intended for investigators.     

特异性可卡因核酸适体测试条的研制

目的筛选识别可卡因的特异性核酸适体,制备可卡因核酸适体测试条（盒）。方法通过SELEX技术筛选可卡因核酸适体,制备胶体金标记可卡因完全抗原（COC-BSA）,制作可卡因层析测试条,并对方法特异性、灵敏度、准确性等性能指标进行考察和验证。结果甲基苯丙胺等64种药品和毒品采用本文研制的可卡因测试条检测,结果均为阴性,无交叉反应;检测可卡因最低浓度在5ng/mL,比胶体金单克隆抗体方法检测高5倍;将测试条密封45℃烘烤1个月后,检测结果与未烘烤过的测试条检测结果一致;与GC/MS检测结果对照,准确性为100%。结论本文研制的可卡因核酸适体检测试条,性能稳定,特异性良好,灵敏性和准确性均可达到实际检测的要求,在毒品、毒物的检测中具有广阔的应用前景。     

Direct blood group typing of forensic samples using a simple monoclonal antibody assay

A simple direct test for blood group antigens in samples of blood, dried blood, dried blood associated with fabric, semen, vaginal secretions, saliva and fingerprints is described. This test takes advantage of monoclonal antibodies which have been produced in this laboratory, but which are also becoming available commercially in ever increasing numbers. The test is sensitive and reliable as evidenced by its performance in blind studies of more than 700 blood samples. The test requires no special equipment and can be completed in 4 h. The test is sufficiently versatile that new antibodies can be added to the same test format as they become available.     

The use of acid phosphatase test papers for DNA profiling.

The acid phosphatase (AP) test is a routine assay used to screen casework items for the possible presence of semen. This colour test is carried out on filter paper which is retained after testing. Two-year-old AP test papers were found to contain sufficient DNA for short tandem repeat (STR) profiling. Prior to polymerase chain reaction (PCR) amplification, the DNA was preferentially separated into sperm depleted and sperm enriched cell fractions. The implication of these findings for past and present cases is discussed.     

Comparative study of the sensitivity and specificity of the zinc and acid phosphatase spot tests for the detection of seminal stains

The sensitivity and specificity of a zinc spot test for the detection of semen were compared with those of an acid phosphatase detection method. As screening techniques both tests were found to be very sensitive, but the zinc test was more specific and was more reliable in older and especially in deteriorated specimens. It is concluded that the zinc spot test deserves at least the same place as the acid phosphatase test in the primary investigation of suspected semen stains and might well be the test of choice in older and poorly preserved stains.     

Comparison of different techniques for the postmortem diagnosis of myocardial infarction

A study was performed on 74 medicolegal autopsy cases for the purpose of comparing the reliability of four different techniques (haematoxylin-eosin stain, acridine orange method, formazan test and K/Na ratio) used for the postmortem diagnosis of myocardial infarction. Although the results showed that the formazan test and K/Na ratio give a good reliability to rule out a myocardial infarction, the most specific technique for the diagnosis of infarct is the formazan test.     

Modified cobalt thiocyanate presumptive color test for ketamine hydrochloride

A new presumptive color test for ketamine hydrochloride is reported. The test is a modification of the cobalt thiocyanate test currently used for cocaine and involves basifying samples rather than acidifying them. The two-step procedure for liquids and three-step procedure for powdered samples are straightforward, definitive, and utilize reagents commonly used in forensic drug analysis. The test works on ketamine hydrochloride in both powder and liquid form and has a sensitivity of c. 1.25 mg. Performing the test with numerous other controlled substances and related chemicals demonstrates the test to be highly selective.     

Optimisation of choline testing using Florence Iodine reagent,including comparative sensitivity and specificity with PSA and AP tests

The detection of semen in forensic science is essential in cases of sexual assault but can be problematic in the absence of spermatozoa. Choline is known to occur in high concentrations in seminal fluid and the Florence Iodine test for its detection has been used in forensic science for many years, however very little is documented regarding its sensitivity and specificity in forensic casework. This paper describes the optimisation of the choline Florence Iodine test (FI) and investigates the sensitivity and specificity of the test against different body fluids, food and drink substances, cleaning products and laboratory chemicals. Comparative testing against Acid Phosphatase (AP) and Prostate Specific Antigen (PSA Seratec®) tests is described and shows that the FI test has greater specificity than the PSA test which cross reacts with a number of body fluids.     

Hematology and pathology devices; reclassification; restricted devices; OTC test sample collection systems for drugs of abuse testing--FDA. Proposed rule

The Food and Drug Administration (FDA) is proposing to reclassify over-the-counter (OTC) test sample collection systems for drugs of abuse testing from class III (premarket approval) into class I (general controls), and to exempt them from the premarket notification (510(k)) and current good manufacturing practice (CGMP) requirements. FDA is also proposing to designate OTC test sample collection systems for drugs of abuse testing as restricted devices under the Federal Food, Drug, and Cosmetic Act (the act), and to establish restrictions intended to assure consumers that: The underlying laboratory test(s) are accurate and reliable; the laboratory performing the test(s) has adequate expertise and competency; and the product has adequate labeling and methods of communicating test results to consumers. Finally, FDA is proposing a conforming amendment to the existing classification regulation for specimen transport and storage containers, to clarify that it does not apply to specimen transport and storage containers that are part of an OTC test sample collection system for the purpose of testing for the presence of drugs of abuse or their metabolites in a laboratory.     

Validation studies of an immunochromatographic 1-step test for the forensic identification of human blood.

An immunochromatographic 1-step test for the detection of fecal occult blood was evaluated for applicability for the forensic identification of human blood in stained material. The following experiments were conducted: 1) determination of the sensitivity and specificity of the assay; 2) evaluation of different extraction media for bloodstains (sterile water, Tris buffer pH 7.5 provided in the test kit, 5% ammonia); 3) analysis of biological samples subjected to a variety of environmental insults; and 4) evaluation of casework samples. This immunochromatographic 1-step occult blood test is specific for human (primate) hemoglobin and is at least an order of magnitude more sensitive than previous methods for detecting human hemoglobin in bloodstains. The antigen is insensitive to a variety of environmental insults, except for exposure to certain detergents and household bleaches and prolonged exposure to certain preparations of luminol. The entire assay can be conducted in field testing conditions within minutes. When in the laboratory the supernatant from a DNA extraction is used for the assay, there is essentially no consumption of DNA for determining the presence of human hemoglobin in a forensic sample. The data demonstrate that this test is robust and suitable for forensic analyses.     

唾液中乙醇含量检测试剂条的研究

目的根据唾液和血液中乙醇含量相关性的实验结果,建立了一种简便快速、准确可靠的检测唾液中乙醇含量的方法。方法本方法利用酶学原理,将一定量乙醇氧化酶(ALO)和过氧化物酶以及底物四甲基联苯胺(TMB)固定于试剂条上,当样本中含有乙醇时,酶学反应使底物TMB显色,通过比对反应的不同颜色,对样本中乙醇质量浓度进行半定量。结果用本方法检测300个自愿者的唾液,和用GC/MS法对照检测志愿者唾液中的乙醇含量,定量结果基本一致。本产品检测过程仅需2min,其检测的阈值为0.1mg/mL,敏感度为96.5%,特异性为91%,准确性为94.7%。结论采用酶学方法制备的乙醇含量检测试剂条,通过显色反应对唾液中的乙醇含量进行半定量检测,其特点为快速简便、准确可靠,适合现场使用。     

犯罪心理测试反测试及其对策

犯罪心理测试技术是在甄别嫌疑人过程中使用的测谎方法.但由于测试中的原理机制等问题,反测试手段可以以多种方式对测过程和测试结果进行干扰.加强犯罪心理测试中的监控并提高反测试识别技术,可以较好地应对测试中出现的反测试.反测试的出现本身就是逃避测试的表现,一旦发现被测人存在反测试行为或心理,则应重点对其进行调查.随着新技术的发展,脑电测试结合测谎范式进行检测有了一定的研究基础,为今后的测谎方式提供了更多的选择.     

Enhancement of microcrystalline identification of gamma-hydroxybutyrate

An enhancement of the microcrystalline test for the detection of gamma-hydroxybutyrate (GHB) is described. The original test used a silver/copper reagent which consisted of 0.1 g of silver nitrate and 0.1 g of copper nitrate in 10 mL water. The enhanced test utilizes lanthanum nitrate in place of copper nitrate. A detection limit of 0.5 mg/mL was achieved and the visual discrimination was improved because of larger sized crystals. Transient crystals were observed between 0.1 and 0.4 mg/mL. Silver nitrate alone appeared to be suitable for GHB detection but was not specific as other hydroxyl acids, such as glycolic acid, produced a similar crystal pattern. Tests conducted on chemical precursors of GHB and substances with similar biological activity highlight the specificity of the enhanced test. The reagent is therefore selective and sensitive for GHB in aqueous solutions. However, in beverage testing, crystal formation appeared to be inhibited for some drinks. Citric acid was identified as a possible interference depending on its concentration relative to GHB.     

Hematology and pathology devices; reclassification; restricted devices; OTC test sample collection systems for drugs of abuse testing. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is reclassifying over-the-counter (OTC) test sample collection systems for drugs of abuse testing from class III (premarket approval) into class I (general controls) and exempting them from premarket notification (510(k)) and current good manufacturing practice (CGMP) requirements. FDA is also designating OTC test sample collection systems for drugs of abuse testing as restricted devices under the Federal Food, Drug, and Cosmetic Act (the act) and establishing restrictions intended to assure consumers that: The underlying laboratory test(s) are accurate and reliable; the laboratory performing the test(s) has adequate expertise and competency; and the product has adequate labeling and methods of communicating test results to consumers. Finally, FDA is adding a conforming amendment to the existing classification regulation for specimen transport and storage containers to clarify that it does not apply to specimen transport and storage containers that are part of an OTC test sample collection system for the purpose of testing for the presence of drugs of abuse or their metabolites in a laboratory.