元宇宙环境下类似商品的认定标准研究

Research on the Identification Standards of Similar Products in the Metaverse Environment

摘要: 我国类似商品的认定标准依照《商标法》和《商标审查审理指南》的规定可以区分为客观认定标准和主观标准，客观认定标准主要从功能、用途、生产部门、销售渠道、消费对象五个要素进行判断，主观标准主要从相关公众是否认为其存在特定联系、容易造成混淆进行判断。该标准在建立之初是为了应对传统产业的类似商品认定，但随着NFT、区块链技术的发展，元宇宙空间逐渐成为各经营者竞争角逐的新场所。传统产业与元宇宙的结合，使得虚拟商品与其对应的现实商品之间的界限越来越模糊，传统的两种认定类似商品的标准已经难以应对现实需求，因此为了保护商标权人的合法权益，必须对现有标准进行完善，或者提出其他可供参考的解决方案，文章通过对现有认定标准缺陷的分析，构想出可以通过以客观标准为主，主观标准为辅的方式认定类似商品以及在类似商品认定困难时，可以通过著作权之诉的方式进行商标保护的解决方案。

Abstract: According to the provisions of the Trademark Law and the Guidelines for Trademark Examination and Adjudication, the criteria for identifying similar goods in China can be divided into objective criteria and subjective criteria. The objective criteria mainly judge based on five elements: function, purpose, production department, sales channel, and consumer object, while the subjective criteria mainly judge based on whether the relevant public believes that there is a specific connection or confusion. At the beginning of its establishment, this standard was designed to address the recognition of similar products in traditional industries. However, with the development of NFT and blockchain technology, the metaverse space has gradually become a new arena for competition among various operators. The combination of traditional industries and the metaverse has made the boundary between virtual goods and their corresponding real goods increasingly blurred. The traditional two standards for identifying similar goods are no longer able to meet the needs of reality. Therefore, in order to protect the legitimate rights and interests of trademark owners, it is necessary to improve the existing standards or propose other reference solutions. Through the analysis of the shortcomings of the existing identification standards, this article proposes a solution that can identify similar goods mainly based on objective standards and supplemented by subjective standards, and when similar goods are difficult to identify, trademark protection can be achieved through copyright litigation.