Die rechtsmissbräuchliche Markenanmeldung - Ein Vergleich zwischen chinesischem und deutschem Recht
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Philipps-Universität Marburg
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Abstract
The abuse of rights in trademark application resulting from the case is controversial in practice. In order to concretize and limit the scope of the topic in a specific context, the subject of the study was derived from the initial cases in the first part: If a original mark is changed into a foreign language adjustment mark in a foreign language market, the question is whether the adjustment mark is protected in the foreign language market and to what extent it is protected.
Under the consideration of the historical, philosophical and economic aspects the root of the disabuse of rights and the concept of marks war surveyed in the second part. In Germany the disabuse of rights is unanimously recognized under the concept of freedom, while the disabuse of rights in China is difficult to understand because right is traced back as a power-exercising instrument. In both countries trademarks appear necessarily and valuable in the world of goods. German legislation on trademark protection relies on economic conditions. In contrast, Chinese legislation on trademark protection has been heavily influenced by foreign rights and international agreements.
Through the introduction of the general principles, the legal nature of the trademark application was discussed in the third part. In China, unlike in Germany, trademark applicants don't enjoy expectancy right by trademark application.
In the fourth part, the question in practice was subsumed and classified under different legal bases. Because the adjustment mark is not used by the owner of the origin mark, but used by the public, it is difficult to consider under the trademark right recognized as a subjective right. Even though in this case the trademark law is considered in the aspect of consumer protection, the recognition of the identity or similarity of the original mark and the adaptation mark resulting from popular translation is controversial. Nevertheless, the trademark protection on constitution, law against unfair competition, civil law, commercial law, criminal law, European law and international agreements for the disabuse of rights in trademark application may be considered.
The procedures are provided in the fifth part for enforcement of the substantive legal basis in the fourth part.
The results can provide the Chinese IP law courts comprehensive justifications for the disabuse of rights in trademark application. They have more influence on access to a foreign-language market, including the German and Chinese markets, especially on a brand strategy in the course of the development of Internet mass media and the globalization of the economy. At the same time, this research project aims to provide impulses in the future for law developments through comparative law research at the national, European and international dimensions. .
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Created: 2019Issued: 2019-11-05Updated: 2019-11-05
Faculty
Fachbereich Rechtswissenschaften
Publisher
Philipps-Universität Marburg
Language
ger
Data types
DoctoralThesis
Keywords
The Protection in the field of trademark translation by publicationDie Schutzposition der muttersprachig volkstümlich übersetzten Anpassungsmarke von der fremdsprachigen Originalmarke
DFG-subjects
muttersprachig volkstümlich übersetzte Anpassungsmarkedeutsches Rechtfremdsprachige Originalmarkechinesisches RechtAnspruchsgrundlagen und Ver
DDC-Numbers
340
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Yang, Lili: Die rechtsmissbräuchliche Markenanmeldung - Ein Vergleich zwischen chinesischem und deutschem Recht. : Philipps-Universität Marburg 2019-11-05. DOI: https://doi.org/10.17192/z2019.0496.