商標權最新諮詢
2021/02/09 21:49
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販售帶有商標的商品
2020/12/22 23:33
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2020/12/17 06:14
是否侵害商標權
2020/11/04 13:36
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2020/10/09 01:28
商標侵權問題
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▲蘇狀師談娛樂法(藝人代言契約實務–藝人代言契約應注意事項)

Rights & Licenses 權利及授權 [Sender.Name] is requesting the exclusive right and license to utilize this name in connection with the advertisement, promotion, and sale of their product. This contract is an agreement for those rights and services with the following terms being in place. 被授權者(下稱甲)要求專屬權及被授權利用權利者(下稱乙)之姓名於廣告行銷與銷售產品。本契約係依根據下列條款所為係爭權利與服務之協議。 [Endorser.Name] will provide rights for [Sender.Company] to hold all exclusive rights and licenses needed during the term of [Agreement.Term]. including the ability for use of any nicknames, initials, autographs, photographs, or any other property in relation to the advertisement or sale of mentioned product. 在契約期間,乙將專屬授權與甲,包括有權去利用任何乙之別名、藝名、簽名,照片或其他任何與廣告行銷有關之財產或本契約提及之銷售產品。 Endorsement Agreement Effective Date 代言契約生效日 This agreement shall become effective as of signature dates below and will remain effective for a term of 12 months unless prematurely terminated for failure to comply with any of the terms or conditions listed in this agreement. 本契約於下簽名日時生效,並於簽名生效後12個月為契約期間,除非契約任一方有違約情事,於預先終止本契約,否則契約仍有效存續。 Payment of Royalties 給付權利金 [Sender.Company] agrees to pay all royalties due from sales of such products as agreed between parties.Any and all royalties owed will be due on a yearly basis and shall be payable no later than thirty (30) days after the termination of the preceding full calendar quarter. 甲願給付雙方同意銷售產品所得所有之權利金。如何拖欠及所有之權利金應以年度為基準來給付。 For each royalty period due [Sender.Comany] will provide endorser with written notice of all royalties as well as any and all descriptions of Products that were sold during the Royalty Period or whether any actual Royalty was owed. “Net Sales” shall mean [Sender.Company] gross sales of Product, excluding all customary discounts and allowances as well as returns. The receipt or acceptance by [Endorser.LegalName] for above mentioned statement or payment shall not prevent Endorser from challenging or requesting proof of such document findings. Any and all obligations for the payment of Royalties shall survive expiration or termination of this Agreement and will continue for as long as Endorsed Constructor continues to sell the Product or payment is owed. In the event of underpayment to endorser for any and all royalties, endorser will bill for all royalties as well as interest fees in relation for said royalties.   請尊重著作權;違法利用,本人必究。

▲蘇狀師談娛樂法

'Resident Evil' Stunt Performer Drops Injury Lawsuit in L.A. 惡靈古堡的特技演員撤回在洛杉磯的訴訟 Its possible, however, that Olivia Jackson may pursue the case elsewhere. Attorneys for British stunt performer Olivia Jackson have dropped a Los Angeles-based lawsuit against the makers of Resident Evil: The Final Chapter.  英國特技演員奧利佛傑克森的律師撤回對“惡靈古堡:最終章”之製作公司在洛杉磯的訴訟。 The defendant argued in the motion to dismiss that Jackson's stunt performer contract specifically includes a provision requiring dispute resolution in South Africa. So it's possible that Jackson may pursue the case elsewhere.  被告爭執到該特技演員契約內容明確規定,本契約如發生爭議其訴訟管轄地為南非,因此該特技演員可能在他地另行起訴。 In September 2016, during the filming of Resident Evil: The Final Chapter, in Cape Town, South Africa, Jackson was badly injured during a stunt. While riding a motorcycle at a high speed, the 34-year-old veteran stunt performer collided with a crane-mounted camera that was traveling in the opposite direction. Her left arm was amputated above the elbow and she suffered lasting nerve damage and facial scarring. 2016年9月,在南非開普敦拍攝上開影片期間,34歲特技演員傑可森在為特技時受了很重的傷。事發時以高速騎著摩托車與反向行進之吊掛攝影機相撞。左手臂手肘以下截肢,同時受有持續性神經損害及面部傷疤。 Jackson’s initial U.S lawsuit, filed in September 2019 in Los Angeles, alleged that Resident Evil director Paul W. Anderson and his longtime producing partner, Jeremy Bolt, were responsible, and requested unspecified damages. 傑克遜最初於2019年9月在美國洛杉磯起訴,主張“惡靈古堡”導演Paul W. Anderson及其長期合作夥伴Jeremy Bolt要對其受傷負責,同時要求未定額的損害賠償金。 “The dismissal of the lawsuit included no settlement or payment of any kind,” said Joseph R. Taylor, an attorney with Frankfurt Kurnit Klein & Selz, the firm representing the defendants, which included director Anderson and producer Bolt, along with their respective production companies. “該訴訟無透過和解或給付任何金額而撤回,包括導演及製片和他們各自的製作公司” 代表被告的Frankfurt Kurnit Klein & Selz律師事務所之 Joseph R. Taylor這樣說道。 Jackson’s attorneys didn’t respond to requests for comment.  傑克遜的律師對該上開陳述未做任何回應及評論。

▲蘇狀師談娛樂法(商標爭議篇)

Central Manufacturing, Inc. v. Brett et al. 492 F. 3d 876 (7th Cir. 2007)  Central Manufacturing, Inc. (“Central”), the registrar of the “Stealth” trademark for baseballs, brought a Lanham Act and state law infringement action against Brett Brothers Sports (“Brett Bros.”), a baseball bat manufacturer that produced a bat of the same name. Brett Bros. is owned in part by Baseball Hall of Famer George Brett. The United States District Court for the Northern District of Illinois granted summary judgment which Central subsequently appealed. The issues on appeal are whether the evidence presented by Central was sufficient for a finding of infringement, whether the district court abused its discretion by ordering cancellation of the registration, and whether the granting of attorney’s fees to Brett Bros. was warranted. The district court’s judgment was affirmed. Central製造公司是有關棒球相關製品“Stealth”商標之所有人,其對Brett Brothers Sports公司,該公司係由棒球名人堂成員George Brett部分持股,提起聯邦商標和州法商標侵權訴訟。美國伊利諾州北區地方法院准予即決判決,Central製造公司隨後提起上訴,上訴的爭點在於,Central所提呈的證據是否足以認定對造侵權,法院是否濫用裁量為撤銷商標註冊令,是否判決應給付Brett Brothers律師費係有正當理由,二審維持一審之判決。 An action for trademark  infringement can only succeed if the plaintiff owns the mark. Registration provides prima facie evidence of ownership that can be rebutted by competent evidence. More importantly, the mark must be used in commerce to ensure that entrepreneurs do not reserve brand names, making their competitors’ products more costly. If a court decision raises doubts about the validity of a trademark registration, a court may cancel the mark, so long as there is no abuse of discretion. Attorney’s fees and other costs may be awarded to the prevailing party “in exceptional circumstances.” 一個商標侵權訴訟,只能在原告擁有該商標時勝訴。商標註冊只是證明商標所有權之初步表面證證,其是可被有利的證據所推翻。更重要的是,商標需確保企業無保留於商業上使用該品牌名稱,使其競爭對手之產品更昂貴。假如法院對商標註冊之有效性生疑。只要無濫用其裁量權,法院可撤銷該商標註冊。在特別的情狀下,律師費及其他費用可判賠給勝訴之一造。 In 1984, Central’s owner and sole shareholder, Leo Stoller registered the Stealth mark for a variety of sporting goods and registered the mark for baseball bats in 2001. Brett Bros. sold its first Stealth bat in 1999 and has sold 25,000 since.Stoller has licensed the mark and sent various cease-and-desist letters to business such as Kmart, Panasonic and even the stealth bomber.Similarly, Stoller sent a letter to Brett Bros. demanding $100,000. Brett Bros. argued that the mark was never used in commerce and requested that Stoller produce evidence to the contrary. The district court found that no valid evidence was produced that the mark was ever used in commerce and the court of appeals agreed. The court of appeals also found that there was no abuse of discretion in cancelling the mark as the registrant’s asserted rights to the mark were invalid.Finally, the court of appeals determined that under the Lanham Act there was no clear error in awarding attorney’s fees as Central’s actions in bringing the case were oppressive. The court of appeals affirmed the district court’s finding that Central produced no evidence of trademark infringement in that no documents were filed, that Stoller mislead the court with his testimony, and that his documents made a mockery of the proceeding. Therefore, the cancellation of the mark and the grant of attorney’s fees were justified. 1984年Central公司的所有人兼唯一股東Leo Stoller將Stealth標記申請註冊於運動用品,同時於2001年將該標記申請商標註冊於棒球棒。 Brette Bros於1999年售出印有Stealth第一枝棒球棒,從那時起共賣出25,000枝。Stoller有將該商標予以授權,同時發出警告信予諸如像Kmart, Panasonic ,甚至像stealth bomber等廠商。同樣地,Stoller對Brette Bros.發出警告函,要求100,000的賠償金。Brette Bros爭執該標記從未用於商業使用,要求Stoller提出證據。地方法院判決無任何有效證據可證該標記曾用於商業,上訴審亦同此見解。終審法院亦認定撤銷商標註冊無濫用裁量,商標權人主張就該標記有商標權,是無效的。最終,終審法院認定Central's提起本件訴訟判予律師費係苛刻的,在藍能法下並無明顯錯誤。 終審法院確認地院判決Central公司提不出商標侵害之證據,而Stoller用其證詞誤導法院,同時其文件對訴訟程序無助。是故,撤銷該商標及判賠律師費予以判決確定。

▲蘇狀師談娛樂法(名模吉吉哈蒂案)

Hadid Cases Hadid was first sued for copyright infringement in 2017, when she uploaded to Instagram a photo of herself taken by photographer Peter Cepeda. Cepeda v. Hadid, 1:17-cv-00989-LMB-MSN (E.D. Va. 2017) Cepeda had properly registered his photo with the Copyright Office and subsequently licensed it through Instar Images to The Daily Mail and TMZ for use in their articles. Without license or permission of Cepeda, Hadid uploaded the photo to two of her social media accounts, receiving millions of likes.  Due to her large following, various online publications copied and posted the photo crediting Hadid instead of Cepeda. Cepeda subsequently filed suit for violation of his exclusive rights of reproduction and distribution of his copyrighted work, but the case quickly settled out of court. 哈蒂首次以侵害著作權被訴係在2017年,其在社群首頁instagram上傳一張由攝影師Peter Cepeda所攝,且已經向國會圖書館登記取得著作權之照片(美國著作權須登記方才取得著作權;美國著作權主管機關係國會圖書館),Peter Cepeda隨後將該照片授權The Daily Mail 與 TMZ雜誌,可於其文章利用該照片。未經Peter Cepeda之授權或同意,哈蒂上傳前開照片於其所有的兩個社群帳號,而獲得數百萬之點讚。肇因於粉絲大量跟追,許多線上媒體直接重製與上傳該照片來讚揚哈蒂,取而代之向Peter Cepeda取得授權獲同意。Peter Cepeda旋即向哈蒂提起侵害其攝影著作之重製權及散布權之訴訟,然該案很快透由訴訟外和解而解決。

▲蘇狀師談娛樂法(藝人代言契約實務–藝人代言契約應注意事項)

Rights & Licenses 權利及授權 [Sender.Name] is requesting the exclusive right and license to utilize this name in connection with the advertisement, promotion, and sale of their product. This contract is an agreement for those rights and services with the following terms being in place. 被授權者(下稱甲)要求專屬權及被授權利用權利者(下稱乙)之姓名於廣告行銷與銷售產品。本契約係依根據下列條款所為係爭權利與服務之協議。 [Endorser.Name] will provide rights for [Sender.Company] to hold all exclusive rights and licenses needed during the term of [Agreement.Term]. including the ability for use of any nicknames, initials, autographs, photographs, or any other property in relation to the advertisement or sale of mentioned product. 在契約期間,乙將專屬授權與甲,包括有權去利用任何乙之別名、藝名、簽名,照片或其他任何與廣告行銷有關之財產或本契約提及之銷售產品。 Endorsement Agreement Effective Date 代言契約生效日 This agreement shall become effective as of signature dates below and will remain effective for a term of 12 months unless prematurely terminated for failure to comply with any of the terms or conditions listed in this agreement. 本契約於下簽名日時生效,並於簽名生效後12個月為契約期間,除非契約任一方有違約情事,於預先終止本契約,否則契約仍有效存續。 Payment of Royalties 給付權利金 [Sender.Company] agrees to pay all royalties due from sales of such products as agreed between parties.Any and all royalties owed will be due on a yearly basis and shall be payable no later than thirty (30) days after the termination of the preceding full calendar quarter. For each royalty period due [Sender.Comany] will provide endorser with written notice of all royalties as well as any and all descriptions of Products that were sold during the Royalty Period or whether any actual Royalty was owed. “Net Sales” shall mean [Sender.Company] gross sales of Product, excluding all customary discounts and allowances as well as returns. The receipt or acceptance by [Endorser.LegalName] for above mentioned statement or payment shall not prevent Endorser from challenging or requesting proof of such document findings. Any and all obligations for the payment of Royalties shall survive expiration or termination of this Agreement and will continue for as long as Endorsed Constructor continues to sell the Product or payment is owed. In the event of underpayment to endorser for any and all royalties, endorser will bill for all royalties as well as interest fees in relation for said royalties.