“《商标法》优先适用论”辨析

我国学界流行的商标法保护规则优先于反不正当竞争法规则适用的观点有可能是受德国法的影响。但是,德国法中存在的这个原则有其特殊历史原因和政策考虑,而且,德国联邦最高法院已经在司法实践中认定《反不正当竞争法》相关条款的适用并不与"《商标法》优先适用"相冲突。《商标法》等专门法无法禁止的行为,并不排除依然可以适用《反不正当竞争法》依法予以制止。《商标法》等专门法的适用,也并不排除《反不正当竞争法》的平行适用。

An Analysis of"Trademark Law Prior Application Theory"

The view that the application of the Trademark Law is prior to the Anti-Unfair Competition Law,prevailing in Chinese academic circles,may find its roots in German law.However,this principle in German law has its special historical reasons and policy considerations.As a matter of fact,the German Federal Supreme Court has affirmed,through judicial practice,that application of relevant provisions in the Anti-Unfair Competition Law does not conflict with the"prior application of the Trademark Law".Regarding acts that cannot be prohibited by special laws such as the Trademark Law,the relevant provisions of the Anti-Unfair Competition Law could still be applied.The application of special laws such as the Trademark Law does not exclude the parallel application of the Anti-Unfair Competition Law.