| The principle of proportionality is known as a jewel in the field of public law,which originated in the German administrative law of the century.With the continuous development and improvement of legislation and precedents,this principle has gradually broken through the field of public law and expanded outward,and the application of the principle of proportionality has also appeared in intellectual property rights.Although the principle of proportionality is not explicitly stated in my country’s trademark-related legislation,there have been cases in which the principle of proportionality is used for reasoning and adjudication in judicial practice.Regrettably,there are few discussions on the principle of proportionality in trademark law circles.There are no clear conclusions about whether the principle of proportionality is justified in trademark law and how to apply it in trademark law.For this reason,this article selects the principle of proportionality in the trademark law as the research object,and tries to explore from two aspects of legislation and judicial practice,so as to provide suggestions for further improving my country’s trademark legal system.The first part sorts out the connotation and development of the principle of proportionality.This part first introduces the traditional connotation of the principle of proportionality in the field of public law,and expounds the specific requirements of the three sub-principles: the principle of appropriateness,the principle of necessity and the principle of narrow proportionality.Afterwards,it discusses the legal basis of the principle of proportionality in trademark law,mainly studying the legal and spiritual foundation of the principle of proportionality,and derives the legal basis of the principle of proportionality in trademark law from the principle of legal philosophy.Finally,based on the requirements of the appropriateness principle and the narrow proportionality principle in the proportionality principle,combined with the legislative purpose of the intellectual property legal system,the proportionality principle in the intellectual property law is described as: "The scope and intensity of intellectual property protection should be consistent with the innovation of specific intellectual property rights.Or the degree of contribution is appropriate".The second part sorts out the concrete manifestation of the principle of proportionality in trademark laws and regulations and trademark trial practices.First of alll,in terms of legislation,the trademark prior use system,the trademark invalidation system and the protection of well-known trademarks all demonstrate the principle of proportionality,that is,the strength of trademark protection is directly proportional to the distinctiveness of the trademark.Secondly,the author selects several trademark infringement dispute cases in which the principle of proportionality is used in adjudication,and analyzes the application of the principle of proportionality in the trial.The third part discusses the limitations of the principle of proportionality as a basic principle of trademark law,and its suggestions for guiding the improvement of trademark legislation and standardizing trademark trial practice.As a legal principle,the principle of proportionality has the characteristics of abstraction,so there are obstacles in its application.In terms of legislation,the system of trademark prior-use rights,the protection of unregistered well-known trademarks,and the regulations on the cancellation period of well-known and non-well-known trademarks still need to be improved.In the practice of trademark trials,supplementary means should be introduced in order to better regulate the discretionary power. |
