Legal Regulation On Anti-competitive Practices In Trademark Field

Recently, the increasingly widespread anti-competitive practice in trademark field has aroused the scholars'concern and discussion. For trademark exhibits products'quality and taste, its force on the competitiveness of enterprises becomes larger and larger. As a result, operators began to pay more and more attention to the protection of trademark rights. However, in this process, the subject of trademark right often carry out some behavior that is unfair competition or restriction on competition, which is injurious to specific competitor's economic interests and the Public Interest, and bring extremely negative impact to the competition order, this determines the urgent need for its legal regulation.Because of the significance of the trademark, anti-competitive actions arise in the trademark field. Trademark contains huge economic value, which is economic root of these anti-competitive practices. While our legislation lacks relevant legislation, this brings about judicial practice's dilemma of appliance, which provides the legal origin for anti-competitive actions in trademark field. In addition, the anti-competitive actions in trademark field also have profound social origin, which is the trademark's force of leading the market after dissimilation.These factors cause the anti-competitive actions'arising in trademark field. These actions search for the illegal rights and interests of unfair competition through direct violation of other competitors'legitimate right in the market, expanding the trademark's scope of authority, invading the public interests and the normal order of market competition. Free and fair competition is the above theory of the theoretical basis of such conducts'legal regulation. Free competition is the soul of market economy; it coordinates economic competition to promote social wealth's increasing. Specific to the trademark rights field, free competition is through product and service, but use trademark in anti-competitive actions distorts the free competitive order, must be regulated by law. Fair competition theory also requires competitors not to seek for the privilege out of law. If a trademark owner violates the fair, wantonly, trademark right field lines of fair competition will be great threat to the field, so the regulation of anti-competitive conduct is imperative. Secondly, the protection of consumer rights for trademark field also provides theoretical basis. Consumer plays the leading role in the market, but the information slants may cause errors in purchasing, undoubtedly invades consumer rights. Again, trademark and the close relationship between anti-unfair competition law and the anti-monopoly law is also theory basis. On one hand, anti-unfair competition law provides protection of trademark right; On the other hand, unfair competition the trademark areas shall be regulated by the anti-unfair competition law.Anti-competitive actions in trademark field is various, but its main forms can be concluded as following eight kinds:trademark squatting, malicious restricting the influence of trademark, anti-competitive actions in license, excessive appliance of a well-known trademark, reverse domain name hijacking, banning trademark parallel import for restrictions of competition, trademark malicious prosecution and spamming trademark infringement warning letter. In view of the above anti-competitive conduct, our legislation should strengthen anti-unfair competition law to regulate unfair competition in trademark field, apply anti-monopoly law effectively to regulate relevant anti competitive actions. Besides, improving the administrative law enforcement and judicial enforcement level,strengthen the cooperation between them is also imperative.