The Study On Commercial Confusion Act

Unfair competition goes against the principle of good faith and recognized commercial ethics, infringe upon the legitimate rights and interests of other market participant and undermines the market order. It is opposed by market economy. In commercial activities commercial signs are the important medium of communication between operators and consumers. Commercial signs are also used by operators to expand the market. However, some operators use others’commercial signs without authorization to obtain competitive advantage improperly. This act, which not only infringes interests of operators and consumers, but also disturbs the order of market competition, is known as commercial confusion act. It is a typical act of unfair competition in the anti-unfair competition law of China and other countries. With China’s market economy thriving, the commercial confusion act has become more complicated and diversified. The law for the regulation of commercial confusion act lags behind the reality, and the practice is not consistent. Based on the mentioned above,this thesis studies on the commercial confusion act systematically combining theory and practice.The thesis proceeds in five parts. The first four parts study on subject, subjective aspect, object and objective aspect seperatly. The fifth part proposes legislative suggestion as conclusion.The first part points out that it should identify operator according to the behavioral nature, and propose my own view on current judicial interpretation of relevant public.The second part demonstrates that commercial confusion act should have subjective fault, and discusses the way of fault identified. It suggests to identify subjective fault with the help of "standard people" on the basis of objective standard.The third part explains the meaning of commercial signs and points out business competitive value of commercial signs in addition to the recognition function. Then it discusses problems of law on commercial signs and put forward the proposal that we can expand kinds of commercial signs by using the theory of "secondary meaning". This part also discusses the way of identifying well-known commercial signs, and analyzes the influencing factors of "well-known".The fourth part focuses on "confusion", the consequence caused by commercial confusion act. It points out generalized concept of confusion should be used in practice. Then this part introduces development of type of confusion, at the same time, it demonstrates that pre-sale confusion, sale confusion and post-sale confusion are bound up with subject of confusion. The confusion of standard and influencing factors are also analyzed in this part.The fifth part as a conclusion, states how to improve the Anti=Unfair Competition Law on commercial confusion act, including using open clause and expanding kinds of commercial signs, using "well-known principle" to coordinate rights conflict, setting exclusion clause, formulating the real general provisions of the Anti-Unfair Competition Law.