Protection On Trademark Interest In Unfair Competition

This thesis studies the protection on trademark interest inUnfair Competition and is divided into three chapters: chapter one,the significance of Unfair Competition to the protection ontrademark interest; chapter two, typological analysis to the unfaircompetitive behavior related to trademark; chapter three, basicconcept of perfecting our country's trademark interest protectionlegal system.Chapter one clarifies the significance of Unfair Competitionthe protection on trademark interest at the beginning. It points outthat Trademark Act is a law that confers patent to registeredtrademark but cannot protect the interests of some unregisteredtrademark that enjoys certain popularity, cannot solve the rightconflictions among commercial marks, and cannot overcome thetrademark monopoly's innate disadvantages. With developmentsof society and economy, the unfair competitive behaviors relatedto trademark took on diversified forms of expression, whilepresent Unfair Competition only prescribes the case of imitativeregistered trademarks and cannot satisfy the demand of thesociety's development, so strengthen and perfect the UnfairCompetition's protection on the trademark interests are the urgentdemand of the society. The thesis makes investigation through theaspects of the function of institution, the means of adjustment, andthe application of the law. First, from the aspect of the function ofthe institution, the thesis analyzes the Unfair Competition'sfunction of protecting social competition order and public interests.It can protect the un-registered famous trademark, and its range ofprotection extends to dissimilar commodities and services, cansolve the interests conflictions among commercial marks, such as,the enterprise name, the mark of the place of production, thenetwork register name, the outward appearance design patent, etc.,can regulate the legal disadvantages of the monopoly of thetrademark, while all these cannot be realized by the TrademarkAct which performs the principle of applying before registration.Secondly, from the aspect of the means of adjustment, the thesisreveals that there are special relations in the protection on thetrademark interest between Unfair Competition and TrademarkAct in the aspects of dynamic adjustment and static adjustment,public adjustment and private adjustment, principled adjustmentand regularized adjustment and deepens the understanding of thespecial functions and significance of the Unfair Competition in theprotection on trademark interest. At last, the Unfair Competitionand Trademark Act competes with each other in regulations in theprotection on the trademark interest , that is the joint regulation tothe behavior of imitating registered trademark. The thesis pointesout there are certain differences in the objects of the protection, sothey still have the value to exist independently; furthermore, theUnfair Competition is not a simple repetition to the protection onthe trademark interest, but has particular legal functions.Chapter two makes typological analysis to the unfaircompetitive behaviors related with trademark. In this part, fromthe aspects of the subjective and objective features of the unfaircompetitive behaviors, the author classified the unfair competitivebehaviors related with trademark into three types: first, unfairinfluence behavior. Vilifying, weakening other's trademarks thatbuilt up with great pains, weakening the influence of it andproducing unfair influence on other's competitive power in certaindegree is a kind of improper influence behavior. Subjectively, itcan be intentionally or only a slip. Secondly, unfair obstructivebehavior. Getting rid of other's trademark by reverse imitating,obstructing other competitors'bridges to be recognized, deprivingthe trademark's recognitory function, cutting the competitive pathsof the goods marked by the trademark, or misusing theadvantageous position of the monopoly of the patent of thetrademark, such as, refusing permission, pair unsalable goods upwith goods that sell well, price discrimination, predatory price, allthese confines the competition free in certain degree, obstructimproperly others'competitive behaviors. Subjectively, the unfairobstruct behavior is direct intention. Thirdly, unfair utilizationbehavior. The purposes of making confusions in similar trade oracross trades and registering others'trademark maliciously are toachieve vested interests or expected interests through making useof other trademark or other commercial marks'outstandingprestige. Subjectively, the behavior appears directly intention orindirectly intention. All of them are the unfair utilizable behaviorthat reaps without sowing. From the above statements, protectionon the trademark interest in Unfair Competition is not the patentright of the trademark, but the fair competition right related withthe trademark and social public interests.Chapter three, combining the above theories and practices,the author proposes that it is necessary to further perform andperfect the particular functions of the protection on trademarkinterest in Unfair Competition. From the aspect of UnfairCompetition, the author proposes that set up the basic conceptfor amplifying our country's trademark interest protection legalsystem. First, by setting up basic clauses, increasing new behaviortypes, drafting solve regulation to the right confliction ofcommercial marks, we can satisfy the realistic demands of the lawfor identifying diversified unfair competitive behaviors. Secondly,through establishing the principle of deducing negligence liability,determining the penalized civil liability, perfecting the forms ofcivil liability, we further construct scientific civil liability system,in order to change the situation of "weight fine, lightencompensation"and pay attention to compensate the victim'seconomic losses. Establishing deducing negligence liabilitysystem to solve the problem that the victim has difficulty inproviding evidence, protecting the victim's interests effectively...