【作者】张伟君 魏立舟 赵勇 【出处】《知识产权》2014年第2期 【中文摘要】涉外定牌加工中使用他人注册商标的行为原则上属于构成侵犯商标专用权的行为。涉外定牌加工的产品不在我国境内销售，不会导致相关公众混淆，但是，“混淆可能”并不是构成商标侵权的必要条件；且在相同商品上使用相同商标的情况下，所谓的“推定混淆”是绝对推定，不能通过相关证据来推翻。涉外定牌加工产品虽然用于出口而不在本国销售，但并不属于过境货物，因此定牌加工仍属于具有营利性质的商业活动的范畴。 【中文关键字】侵犯商标专用权；涉外定牌加工；混淆可能；商业活动中的使用；来源识别功能 【全文链接】http://article.chinalawinfo.com/ArticleFullText.aspx?ArticleId=88665
The game of “Spoting the Difference" starts again!
Google’s ICP license renewed. See the captured today’s Google.cn web page below (left), and compare it with the page in last week (right).
|Google.cn on 9 July 2010:
||Google.cn on 4 July 2010:
Exactly as what I predicted, Google is trying to make Google.cn being a non-search engine website. It now places "Music", "Translation" and "Shopping" at the web page. These are what Google wishes to keep on running in China. While the search engine service of Google.cn is replaced by a link to google.com.hk. Legally speaking, Google.cn is not providing search engine service currently. It is merely a link to another website. Just like the links added in any of our own web posts.
Cambridge, MA – The Berkman Center for Internet & Society at Harvard University today announced its new class of fellows for the 2010-2011 academic year, continuing a tradition of providing a home to many of the brightest and most creative minds in law, technology, and social science, as well as leading entrepreneurs and activists. Joining the Berkman Center is an opportunity for fellows to further pursue their current work, to incubate new ideas, and to apply their expertise more directly to the Center’s interdisciplinary research agenda.
“We are thrilled to have such a gifted and engaged group of fellows from so many different disciplinary, professional, and personal backgrounds on board this year,” said Berkman Center Executive Director Urs Gasser. “Fellows play an essential part in our pursuit of rigorous research and scholarship with impact. Looking at the class of 2010-11, there is no doubt that the diverse and outstanding group of fellows will continue to fuel the Berkman Center’s activities and broaden its perspectives in the months and years to come.”
New 2010-2011 Berkman fellows:
NOTE: Please DO NOT quote this text for current legal cases because it has been amended tremendously twice by the 2001 Amendment of Copyright Law and the 2010 Amendment of Copyright Law. I republish it hereby merely for the purpose of historical ressearch.
As an Interent application or online service, "Google Books" may not necessarily be found infringement.
But, Google would be held infringement liability if it really scanned Chinese books without authors’ consents.
First of all, I am talking about Chinese copyright Law. As for whether the same act would be held infringement in the US courts, I don’t know. I don’t know because once the Google Book Settlement is approved by judge, the case will be dismissed without ruling. Even if the settlement were not approved, and even if the case were finally ruled favoring Google, it would merely be a US judgement binding in the US, not necessarily binding in China. In other words, so long as the case is in Chinese courts’ jurisdiction, Chinese courts shall, according to Chinese copyrigh law, make their onw decisions no matter what the US court’s ruling is. This is a crutial common sence, but I doubt many people may forget it, because for a long time, I see too many comments to Chinese cases according to US laws.
Second, the only relationship between the US court’s ruling and China is: if China thinks a US binding judgment or the approval of settlement violate TRIPS, China may file the case to the WTO.
Third, back to the dispute between Chinese writers and Google, for the forgivable exploitation of the copyrighted works, Chinese copyright law is following the European mode of "limitations to coyright" but not the US concept of "fair use". Therefore, unless a non-liability provision has been provided explicitly, the conduct will be judged infringement once such conduct is regulated in Art. 10 of Chinese Copyright Law as the content of copyright. Until now, China only allows the search engines to store the content in other websites automatically. A conduct of scanning the books, from the first pege to the last, from the first line of each shelf to the last line, constitutes infringement definitely (unless the conductor is public library).
Fourth, Google’s self-limitation of accessing to the full-text of the scanned books is another story. The infringement has been established soon after scanning and storing books in its servers.
Last but not less importantly, this is a legal and positivist analysis. Not a value criticism. I am not saying that Google Books is a good/bad thing hereby. I am also not saying that one should not look at the case and the whole set of the current law critically. On the contrary, the real criticism should be based the fact on which some obvious good thing is hindered by the existing law, or some obvious bad thing is permitted by the existing law.
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