The Protection Of Special Package And Decoration Of Famous Commodity By Anti-unfair Competition Act

The special package and decoration of famous commodity, which is distinctive andnon-functionality, is the appearance of commodity, and can be utilized to distinguish theresource of goods and services. Besides, the special package and decoration of famouscommodity can effectively lead consumers’ interests and purchase decision, thus play animportant role in shaping brands, training goodwill and occupying market. It is because theincreasing importance of package and decoration in the market completion that some operator‘take a free ride’ to occupy market quickly, which known as using similar package anddecoration with famous commodity. Completion is the spirit of market mechanism, thusunfair completion violates the principle of honest and commercial ethics. Not only did theoperators’ and consumers’ interests harmed, but also the socialistic economic order.At the present time, the protection of special package and decoration of famouscommodity is based upon intellectual property law and anti-unfair competition act primarilyin our country. Because of the principle of legality of intellectual property law, as well as thedistinct regulating extension of each branch law, it seems very important that the anti-unfaircompetition act should exert its supplementary function on protection of package anddecoration. Anti-unfair competition act in effect is rather general and backward, which leadsto legal flaws along with the increasingly clever illegal measures. Meanwhile, the originalconception ‘package and decoration’ in our country causes that the shape of products cannotbe protected by anti-unfair competition act. Furthermore, there are a good many absurdness inprotecting condition and cognizance of torts, which lead up to that our anti-unfair competitionact cannot link with intellectual property law in all domains.This article mainly studies the protection of package and decoration from the angle ofanti-unfair competition act. On the basis of our country’s realistic situation, referred to theadvanced legislation in the world, established in avoiding the market confusion, aimed at thebalance of free completion and operators’ benefits, this article analysis the protectingconditions and foundation of cognizance of torts by comparative method. There are four partsaltogether:Chapter1, a summary of the special package and decoration of famous commodity,mainly introduces the conception, characteristic, importance and protecting conditions. In thecognizance of the special package and decoration of brand products, there should be three standards: distinctiveness, non-functionality and using formerly.Chapter2, several protection patterns of the special package and decoration of famouscommodity, including copyright law, trademark law, patent law and anti-unfair competitionact. Hence comes to the article’s center, namely protection according to anti-unfaircompetition act when the intellectual property law cannot provide sufficient shield.Anti-unfair competition act should be based on the market confusion in cognizance of torts,and return to traditional civil law as well.Chapter3, studies of the special package and decoration of famous commodity in thelight of comparative laws. Some international conventions such as Paris Convention, ModelClauses of Anti-unfair Competition Act by WIPO, TRIPS and relational stipulation ofAmerican and Japanese, provide reference in protecting extension and cognizance of torts forour country.Chapter4, three proposals related to perfections of our legal system in protection of thespecial package and decoration of famous commodity: Firstly, we should abolish the ‘famous’terms, which can be condition of further protection instead of threshold of protection, so as toachieve the balance of operators’ interests and free competition; Secondly, import theconception of ‘Trade Dress’ which concludes the shape of products, thus leads to a moredistinct protecting extension and will not conflict with our patent policy as well; Thirdly,import the principle of dilution, because of the necessary and feasibility to apply the principleof dilution in trade dress area. Besides, put forward main points to apply principle of dilutioncarefully.