智慧財產權月刊 223 期

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本月專題
商標有致產地來源誤認誤信之判斷
106.07 智慧財產權月刊 VOL.223
຅˜ਠۜପήᑌซ™ܔͭdୋɚ ࠅࡈ΁֠඲ীሞ݊щࠑۃᑌซၾԫྼϞ ה਋
ᕎd͵у݊щ˜ԫྼɪ޴ᗫਠۜא ؂ਕԨڢ˸Ϥήଣਜਹމ Ը๕ή™d߰ٵމ ֛
ٙഈࣩdۆ޴ᗫऊ൬٫ڦ፠˜ਠۜପήᑌซ™dуϓ މႬႩא ႬڦdҢ਷ਠᅺج
ୋ 30 ૢୋ 1 ධୋ 8 ಛ˜Դʮ଺ႬႩႬ ڦՉਠۜא ؂ਕʘପήʘ໬٫™༆ᙑቇ͜
ʘୋɚࠅࡈ ΁މۆ ϓఱ 18f
ۃʊሞʿdীሞୋɚࠅࡈ΁ הፗʘԸ๕ήࣛdમ՟ᄿ່༆ᙑdਠۜא؂ਕʘ
Ը๕ήʔ˸ਠۜʘႡிήdא؂ਕʘ౤Զή މࠢdਠۜא؂ਕʘ၍ଣήe޼೯ήe
ணࠇήeБቖήאਠۜא؂ਕʘ˴ ࠅϓʱeʩ΁ʘႡிήאӉ᜷ʘྼ݄ήdѩ੻
༆ᙑމਠۜא ؂ਕٙԸ๕ήf͟ϤϾሞdਠᅺlz࢙הܸͪʘήଣਜਹdၾਠᅺה
ܸ၈ٙਠۜא؂ਕගٙஹഐd̥ ࠅୌΥࠑۃԸ๕ήٙ༆ᙑᇍఖdу̙ঐਗ਼༈ਠۜ
א؂ਕൖމԸІ׵ਠᅺlz࢙הܸͪʘήଣਜਹ 19f޴࿁ϾԊd߰ήଣਜਹၾਠۜ
א؂ਕʘஹഐdೌ جୌΥԸ๕ήٙ༆ᙑᇍఖd ۆίୋɚࠅࡈ΁ٙ༆ᙑɪd˜ԫྼ
ɪ޴ᗫਠۜא؂ਕԨ ڢ˸Ϥήଣਜਹ މԸ๕ή™у̙ᆽ֛ 20f
18 Νൗ 13isee also European Union Intellectual Property Office, Guideline for Examination of European Union
Trade Marks, Part B Examination, Section 4 Absolute Grounds for Refusal, Chapter 8, Descriptive Trade
Marks Article 7(1)(g), at p.6 (“The sign could evoke in the consumers’ minds some impressions/expectations
as tothe geographical origin of the goods or of the designer thereof that may not correspondto reality.
For example, trade marks such as ALESSANDRO PERETTI or GIUSEPPE LANARO (invented
examples) covering clothing or fashion goods in general may suggest to the relevant public that
these goods are designed and produced by an Italian stylist, which may not be the case.”)(hereinafter
“Guideline for Examination of EUTM).
19 See In re Miracle Tuesday, LLC. 695 F.3d 1339, 1344 (Fed. Cir. 2012)(“The second inquiry under
this element asks whether the goods will in fact originate from the named place. It is undisputed that
goods may be deemed to originate in a geographic location if they are manufactured there. Origin
can be predicated on factors other than manufacture, however, where the circumstances justify such a
connection. Indeed, at oral argument, the PTO conceded that, in appropriate circumstances,¦the place
of design can be enough.§Similarly, if the goods contain a main component or ingredient from the
place identified in the mark, that connection can be sufficient to find that the goods originate from that
place. And, a product might be found to originate from a place where the applicant has its headquarters
or research and development facilities, even when the manufacturing facilities are elsewhere.”)
(Citations omitted).
20 Id. at 1345 (“Accordingly, the fact that Mr. Klifa lived in Paris over twenty-five years ago is insufficient
to establish that the goods to now be marketed under the proposed mark originate there. On this record,
there is no evidence that Mr. Klifa's activities while he lived in Paris had anything to do with designing
handbags or the other goods identified in the application. Nor is there any evidence that Mr. Klifa
exhibited any of the types of goods at issue at the Parisian trade shows he attended. Given the statutory
focus on the geographic origin of the goods, Miracle Tuesday's attempts to shift the inquiry to the
historical origin of the designer must fail.”)