會議論文
| 學年 | 92 |
|---|---|
| 學期 | 1 |
| 發表日期 | 2003-12-01 |
| 作品名稱 | 公平交易法對公司名稱規範與保護及範圍 |
| 作品名稱（其他語言） | |
| 著者 | 馮震宇; 林國全 |
| 作品所屬單位 | 淡江大學公共行政學系 |
| 出版者 | 臺北市：行政院公平交易委員會 |
| 會議名稱 | 第十一屆競爭政策與公平交易法學術研討會 |
| 會議地點 | 臺北市, 臺灣 |
| 摘要 | 民國90 年11 月公司法修正後，公司法對於公司名稱使用之規範'已不及於仿冒影射等公司名稱之冒濫使用。有關公司名稱冒濫使用之不公平競爭行為防止，乃以公平交易法為主要規範。公平交易法與公司法就公司名稱使用之規範'在規範目的、規範程度、規範對象、規範發動時期及規範方法上皆有不同，故使用依公司法核准登記之公司名稱之行為，若符合公平交易法第二十條第一項第一款、第二款之規定，即係抵觸公平交易法立法意冒之不公平競爭行為，自不得依公平交易法第四十六條規定，主張優先適用公司法之規定，而認為係正當權利之行使。另一方面，公司名稱較之公平交易法第二十條所定之其他表徵'真有公司名稱以登記為必要;公司名稱僅限於文字，且僅限於我國文字之特性。故公司之英文名稱，並不真備法律上「公司名稱」之意義。公司名稱有無相同或類似之使用，應就「字形」、「發音」、「概念」三要素為綜合判斷。惟公平交易委員會訂頒之「處理公平交易法第二十條案件原則」第十四點第一項規定「三公司名稱中標明不同業務種類者，其公司名稱非本法第二十條所稱之相同或類似之使用。」就公司名稱冒濫使用行為之能否適用公平交易法第二十條，造成極大限制，應予廢止。此外，就藉由公司名稱不當使用所為之不公平競爭行為，若能認定構成公平交易法第二十條之違反，即應優先適用第二十條論處，僅於不能認定構成第二十條之違反時，始考慮得否依第二十一條或第二十四條論處。The purpose of this Research Project is to conduct an extensive research regarding the protections of the company name under the present Fair Trade Law (the "FTL") mechanism. Previously, both the Fair Trade Law and the Company Law have provisions that specifically protect the company name so as to prevent the unfair competition behavior, such as counterfeiting and passing-off that impairs the goodwill of a legitimate company. After the revision of the Company Law in Nov. 2001, however, the amended Company Law limits its protection to those names that are registered with the government agency. The function of the company name under the Company Law, therefore, is restricted to identify the corporate only. As a result, the amended Company Law will no longer playa major role in the counterfeiting or passing-off issues. On the contrary, Articles 21 and 24 of the "FTL will be responsible in preventing the unfair competition behavior such as the passing-off of company's name. Consequently, the goal of this Project is to explore the best practice in dealing with such issue pursuant to the Fair Trade Law. As a result, this Research Project first collects and analyzes the present rules and regulations regarding the protection of company name and trade name so as to clarify the differences between various laws and regulations. Secondly, this Research Project further analyze the laws, regulations and practice with respect to the protection of the company name from various countries, such as United Kingdom, United States and Japan. The purpose for such comparative legal research approach is try to achieve the following goals: first, to clarify the relation between company name and other property rights; secondly, try to draft guidelines that differentiate the "bona fide" use and "unreasonable" use of the corporate name for the FTC. Furthermore, since the Trademark Law has undergone an extensive revision, this Research Project also discusses the company name protection issue pursuant to the revised provisions and its interaction with the Fair Trade Law. After further research, the research team finds out that the · FTL has fundamental differences with the Company Law, especially concerning the use of company name. Such differences can be easily differentiated in many aspects, for example in scopes, purposes, subject matters, activating events and approaches adopted by these two laws. Therefore, any unauthorized use of other corporation's name and which falls into the ambit of Article 20, subsection 1 & 2, will constitute an unfair competition act, which violates the legislative purpose of the FTL. Consequently, in such situation, the offender will not be allowed to argue that, pursuant to Article 46 of the FTL, the Corporate Law shall have priority over the FfL, nor it is an act of legitimate exercising its rights. Moreover, comparing with other symbols as illustrated in Article 20 of the FfL, since company name requires higher standards, therefore, the research team believes that the FfL shall treat the unfair use of other company name's action with care. For example, corporate name must satisfy the registration requirements to be registered with the authority, but other symbols, except trademark, does not have such requirements; company name must be presented in Chinese so as to fulfill the requirements of the "company name" as illustrated in the Corporate Law, therefore only English name will not constitute an legitimated company name pursuant to the Corporate Law. Furthermore, previous court decisions use "appearance, pronunciation and concept" in determining whether two corporate names are similar. On the contrary, the rules promulgated by the Fair Trade Commission, i.e., the "Principles that handle Article 20 cases of the Fair Trade Law" provide a different approach. For example, on Section 14, subsection 1 expressly states that should two company's names marked by different business, even though the company names are similar, they will not be deemed as violating Article 20 of the FfL. Such rule cause tremendous trouble when applying Article 20 in the determination of the similarity of the company name. As a result, in the wake of Corporate Law's revision and to prevent any unfair competition, the research team believes that such rule shall be revised. In conclusion, this research team argues that the use of other company's name in an anticompetitive manner, if find to satisfy Article 20's requirements, then Article 20 shall be applied first. Only when no Article 20 violation is found, then we shall use Articles 21 and 24 of the FfL in finding violation of the FfL. The purpose of this Research Project is to conduct an extensive research regarding the protections of the company name under the present Fair Trade Law (the "FTL") mechanism. Previously, both the Fair Trade Law and the Company Law have provisions that specifically protect the company name so as to prevent the unfair competition behavior, such as counterfeiting and passing-off that impairs the goodwill of a legitimate company. After the revision of the Company Law in Nov. 2001, however, the amended Company Law limits its protection to those names that are registered with the government agency. The function of the company name under the Company Law, therefore, is restricted to identify the corporate only. As a result, the amended Company Law will no longer playa major role in the counterfeiting or passing-off issues. On the contrary, Articles 21 and 24 of the "FTL will be responsible in preventing the unfair competition behavior such as the passing-off of company's name. Consequently, the goal of this Project is to explore the best practice in dealing with such issue pursuant to the Fair Trade Law. As a result, this Research Project first collects and analyzes the present rules and regulations regarding the protection of company name and trade name so as to clarify the differences between various laws and regulations. Secondly, this Research Project further analyze the laws, regulations and practice with respect to the protection of the company name from various countries, such as United Kingdom, United States and Japan. The purpose for such comparative legal research approach is try to achieve the following goals: first, to clarify the relation between company name and other property rights; secondly, try to draft guidelines that differentiate the "bona fide" use and "unreilsonable" use of the corporate name for the FTC. Furthermore, since the Trademark Law has undergone an extensive revision, this Research Project also discusses the company name protection issue pursuant to the revised provisions and its interaction with the Fair Trade Law. After further research, the research team finds out that theFTL has fundamental differences with the Company Law, especially concerning the use of company name. Such differences can be easily differentiated in many aspects, for example in scopes, purposes, subject matters, activating events and approaches adopted by these two laws. Therefore, any unauthorized use of other corporation's name and which falls into the ambit of Article 20, subsection 1 & 2, will constitute an unfair competition act, which violates the legislative purpose of the FTL. Consequently, in such situation, the offender will not be allowed to argue that, pursuant to Article 46 of the FTL, the Corporate Law shall have priority over the FfL, nor it is an act of legitimate exercising its lights. Moreover, comparing with other symbols as illustrated in Article 20 of the FfL, since company name requires higher standards, therefore, the research team believes that the FfL shall treat the unfair use of other company name's action with care. For example, corporate name must satisfy the registration requirements to be registered with the authority, but other symbols, except trademark, does not have such requirements; company name must be presented in Chinese so as to fulfill the requirements of the "company name" as illustrated in the Corporate Law, therefore only English name will not constitute an legitimated company name pursuant to the Corporate Law. Furthermore, previous court decisions use "appearance, pronunciation and concept" in determining whether two corporate names are similar. On the contrary, the rules promulgated by the Fair Trade Commission, i.e., the "Principles that handle Article 20 cases of the Fair Trade Law" provide a different approach. For example, on Section 14, subsection 1 expressly states that should two company's names marked by different business, even though the company names are similar, they will not be deemed as violating Article 20 of the FfL. Such rule cause tremendous trouble when applying Article 20 in the determination of the similarity of the company name. As a result, in the wake of Corporate Law's revision and to prevent any unfair competition, the research team believes that such rule shall be revised. In conclusion, this research team argues that the use of other company's name in an anticompetitive manner, if find to satisfy Article 20's requirements, then Article 20 shall be applied first. Only when no Article 20 violation is found, then we shall use Articles 21 and 24 of the FfL in finding violation of the FfL. |
| 關鍵字 | company name;well-known;similar use;confusion similarity;symbol |
| 語言 | zh_TW |
| 收錄於 | |
| 會議性質 | 國內 |
| 校內研討會地點 | |
| 研討會時間 | 20031201~20031202 |
| 通訊作者 | 馮震宇 |
| 國別 | TWN |
| 公開徵稿 | |
| 出版型式 | |
| 出處 | 第十一屆競爭政策與公平交易法學術研討會論文集，頁283-316 |
| 相關連結 |
機構典藏連結 ( http://tkuir.lib.tku.edu.tw:8080/dspace/handle/987654321/85179 ) |