Analysis On The Function Of Anti-unfair Competition Law In The Protection Of Intellectual Property

How to protect intellectual property effectively and rationally has become one of the very important international problems. Intellectual Property Law has its historical frame, which consists of Patent Law, Trademark Law and Copyright Law. Many countries and some international organizations are continuously improving and reinforcing the protection of intellectual property in the special legislation. Meanwhile, as one of the useful and flexible tools, anti-unfair competition law is being attached great importance in the field of intellectual property. Its flexibility has covered the insufficiency of single protection in Intellectual Property Law.In this article, the author probes into the roles the anti-unfair competition law is playing in the protection of intellectual property. There are three parts in this article. In the first part, the author theoretically analyses the two legal systems and the relationship between them based on the related theories of economic laws. In the concern of the protection of intellectual property and its relevant business achievements, Intellectual Property Law ensures that the owner's intellectual property rights are not being infringed in the protection period by defining the rights of the subjects. This is a positive and static protection, which is definite but not flexible. Yet anti-unfair competition law can prevent unfair competition, maintain the benefit of operators and consumers as well as the public benefits and ensure the effective operations of fair competition system by means of defining the fairness and justification of the competition and its influence to the order of market competition. It provides a dynamic protection, which is flexible but not definite. The two laws have their own aim of legislation, protective ways and emphases of protection, but they can also complement each other. Only if we can apply them comprehensively, is there the full protection to the obligee's benefits.In order to clarify this complement function, the author expounds her views from the protection of commercial marks and business secrets. In "Law of the PRC on Anti-Unfair Competition", article 5 item 2, the protection of famous commodities' name, package and decoration fully illustrates the complementation of protection of commercial marks, which has its specifically, and not the single repetition of other intellectual property laws. And the legislation of business secrets is another example of its complementation. This function complementation, in turn , enlarge and enforce the protection of intellectual property.In the second part, the author develops her views practically. Counterfeiting registered trademarks and embezzlement of business secrets are the main unfair competition behaviors in intellectual property area, which obtain illegal benefits and are not against the special rules of Intellectual Property Law and also make the public misunderstood and confused the products and the origin of the service. Since Intellectual Property Law can't regulate these actions effectively, Law of Anti-Unfair Competition plays its role fully and flexibly, avoiding the confusing illusion. All the cases judged by courts up till now are proved this ( the author calls it "elasticity of application", and analyses its special points ). And the author has given some convincing cases in the article to illustrate the above views.In the third part, the author puts forward the suggestions of improving the existing legislation, combining the above points of views and the comparison of relevant international conventions and foreign legislation. The purpose of this part, even the whole article, is to emphasize the important roles the anti-unfair competition law plays in the protection of intellectual property and let it work better.In a word, the author makes a complete picture of the function of anti-unfair competition law in protection of intellectual property in this article. Hope the article can arouse the interests of the society to further study the...