不公平競爭規範與著名表徵的保護──論二○一五年公平交易法修正後之相關議題

Unfair Competition Law and Protection of Well-known Representation: An Analysis of the Issues Arising from the 2015 Amendment of Taiwan Fair Trade Act

關於仿冒商品或服務著名表徵之不公平競爭行為，其規範體系於二○一五年公平交易法修正後已有重大變更。但立法者似未正確認知商標法與不公平競爭行為規範間目的與內容的差異性，使該次修法未能完全梳理商標法與不公平競爭行為規範如何處理此一議題的規範架構，導致相關體系治絲益棼、紊亂難解；此外，就公平交易法第二十二條與同法第二十五條補遺條款間的適用關係，該次修正亦有滋生實體與程序上爭議之虞。本文著眼於此，嘗試比對分析我國公平交易法對於著名表徵之保護於二○一五年修正前後之差異，具體指陳本次修法產生的問題點，並嘗試省思智慧財產權法中商標法與不公平競爭行為規範間的互動關係。

An amendment to the Taiwan Fair Trade Act (TFTA) in 2015 has materially modified the statutory structure of the protection of well-known representation, which symbolizes an intriguing relationship between unfair competition and trademark law. However, instead of clarifying the ambiguity existing in the old TFTA, the amendment exacerbated the concerns over the confusing statutory structure. Worse still, it seems to have raised a doubt about how to interpret and apply article 22 and 25 of the TFTA appropriately when well-known representation is used by an infringer on a good or service that is not the same or similar to the original one. These complex legal issues arguably result from the legislators' inaccurate understanding of the fundamental differences between unfair competition and trademark law. This paper points out several intertwined issues sparked by the 2015 amendment through comparing the different terms describing well-known representation in the old and current TFTA and analyzing the interpretations of these terms, aiming to clarify the purposes and objectives of article 22 and 25 of the TFTA respectively and to reflect on the interrelationship among unfair competition and trademark law, or even broadly, intellectual property law.