The Empirical Study Of “Well-known” Identification On Countering Unfair Competition Protection Of Well-known Commodity Specific Marks

The specific marks of well-known commodity are protected by the Anti-Unfair Competition Law, which legislative purpose is to prevent consumers from mistaking and being confused. Based on the current system, the commodity names, packages and decorations must satisfy two conditions if they want to be protected: one is the commodity must be well-known, the other one is the commodity names, packages and decorations must become distinctive. But this system exists some problems, such as wrong protects and deform protect conditions. In fact, the legal basis of protecting specific marks of well-known commodity and trademarks is the same, marks should be protected as long as they acquire “secondary meaning” and have the function of distinguishing commodity source during using process. Therefore, being well-known is the only condition of being protected for commodity names, packages and decorations. The identification criteria of well-known commodity can’t be uniform and objective because of its abstractness, and the court makes identification of well-known under considering comprehensively factors affecting well-known level. Thus, the identification factors about well-known play a very important role and become main control indexes in the system of well-known commodity marks.The analysis of 177 cases about specific marks of well-known commodity shows, there are 16 main identification factors about “well-known” in the practice of judicial actions. These factors are listed as follows according to their importance: sales time, honors, range of publicity, duration of publicity, publicizing degree, sales area, sales volume, being identified as reputed/famous trademarks, being protected as well-known commodity, commodity reputation, advertising fee, commodity quality, sales object, mode of chain coalition, the historical heritage and ranking. The numbers of “well-known” identification factors distribute between 0 to 10 for each case with a high degree of dispersion, which indicating that different courts have different standards about well-known identification.There are 16 identification factors in judicial practice, which can be classified into 6 large categories by cluster analysis: sales time, honors, publicity, sales, being identified as well-known/famous trademarks and other factors. The publicity case includes range of publicity, duration of publicity and publicizing degree. Honors, influence of related registered trademarks and ranking are recommended to add in related judicial interpretation. All factors should be classified into several categories and explained with their importance. Based on analysis hierarchy process(AHP), constructing the judgment matrix of well-known identification through establishment of hierarchic structure, and determining the comprehensive weight of these identification factors, in order to provide reference for judicial activities of well-known commodity identification.