美國營業包裝識別性探討-兼比較我國非傳統商標相關識別性實務之運作

Abstract

營業包裝是獨特的商品呈現（產品之整體印象）具商標之屬性，卻可以包含具體或抽象的不同組合而多變，其在侵權的訴因與商標相同而同受聯邦法之保護，訴訟時識別性常是爭執之重點，營業包裝識別性之要求，如同商標之識別性要求一樣 ，須能達表彰商品及服務來源，並與他人之商品或服務相區別之效果。然而營業包裝有商標所沒有之特質，傳統商標識別性之原則如何適用，再者，虛擬之營業包裝或產品設計其商標價值低，給予專用權，引起批評。聯邦最高法院先後於Two Pesos案及Wal-Mart案中表達了關於識別性之見解，聯邦最高法院解決了哪些問題，存留哪些困惑，實務如何發展、新興類型的營業包裝所產生的問題及識別性如何，為本文探討之重心。而美國法院所發展的營業包裝與我國現行的非傳統商標相類似，究竟美國法院實務與我國實務運作有何扞格之處，也一併分析檢討。有鑑於營業包裝識別性判斷的各項考量因素並非固定不變，美國法上對營業包裝的保護，主要是由案例所形成，法院判決見解對營業包裝之意義及保護內涵之釐清具重要影響力，本文因此從法院見解之解析來了解營業包裝識別性之意義、考量因素、認定時點，聯邦最高法院對營業包裝識別性見解對下級法院產生的影響，來探究適合營業包裝之識別性判斷基準，同時比較我國實務運作之異同。

The purpose of this article is to elaborate the distinctiveness of trade dress in American law. While trade dress has the characters of trademark, it concerned particularly with the product presentation(the overall impression of the product). Both trade dress and trademark serve an identification function, as well as a marketing function. But trade dress covers various combinations of concrete and abstract subjects, which a trademark doesn't have. Do all the normal trademark rules apply to trade dress? The U.S. Supreme Court gave their opinions first in Two Pesos and later on in Wal-Mart case, both of which are not clear enough to fully address the issue of the distinctiveness of trade dress. The only guidance offered by the Supreme Courts on the issue of distinctiveness of trade dress is that the rules for trademarks may not be entirely applicable to trade dress. The focus of this paper are how the Supreme Court's decision affect trade dress law. What remains problematic is how case law has recently began to develop concerning the protection of new type of trade dress. The concept of non-traditional trademark in our Trademark Act is similar to trade dress in the US. What are the differences between the opinions of courts in the U.S. and those in Taiwan. The protection of trade dress in American law is mainly formed by the case, the opinion of the court has great influence on the significance of trade dress and the clarification of the protection connotation. Therefore, the author would like to find standards for the distinctiveness of trade dress through the analysis of cases regarding the meaning of trade dress distinctiveness, relevant factors, the point of time for determination. The author would like to address the impacts the opinions of the U.S. Supreme Court has on the lower courts, and make a compression with the practice of non-traditional trademark in Taiwan.