美國馳名商標法則、TRIPS協議與香煙平裝立法

The U.S. Well-Known Mark Doctrine, TRIPS Agreement and Plain Packaging on Tobacco Products

馳名商標法則緣自《巴黎公約》，其國際應用由來已久，但是它在美國的司法適用卻在綿延不斷的判例中搖擺不定，遲遲無法得到承認。21世紀著名的Grupo案、ITC案和Fiat案雖能對這一問題起到一定的導向性作用，但是鑒於美國的立法程序、司法體制和國內產業利益方面的考量，法則的適用仍會是一個懸而未決的問題。有關國際商標制度變遷的另一個熱點話題是香煙平裝立法，澳大利亞政府作為此項規定的積極推行者，其法律遭到了多方企業和國家的反對，香煙平裝立法因與TRIPS協議第8條、第20條的相互關係而備受關注，而WTO專家小組在此項爭議解決中的最終態度也將直接影響各國的有關立法。

The Well-known Mark Doctrine, put forth by the Paris Convention, being effective and maneuvered internationally for almost a century, is however still facing difficulties and suffering regarding its judicatory applicability within the U.S. court system through a series of trademark cases. With inevitable considerations towards the U.S. legislation process, judicatory system and financial interests of national industries, the uncertain applicability of the said doctrine will likely to continue, despite the orientational significance offered by certain widely known case laws in the current century, including the Grupo v. Dallo case, ITC v. Punchgini case and Fiat v. ISM case. Whereas another widely disputed issue in the field of international trademark regime development is the plain packaging law on tobacco products, the Australian government, as an aspiring promoter, is being confronted by various corporations and nations upon the legality of its plain packaging law. Regarding the ongoing disputes, the conflicting interaction between the law and article 8 as well as article 20 of the TRIPS Agreement is considered to be the crucial factors, admittedly the future decisions from the WTO Dispute Settlement panel will exert major effects on the relative legislation of various nations.