On The Protection Of Invaild Design Patent By Anti-unfair Copmetition Law

Where the design patent has been invalidated, the patent goes into the public domain and can be imitated by the public. While design is a special subject of intellectual property, it may be protected by Anti-unfair competition law as a trade dress after patent right ceasing to be valid. The reason is that Anti-unfair competition law makes the restriction to the abusement of free imitation, as it could do harm to consumers’ interests, but also the socialistic economic order. At the present time, the protection for the design provided by Anti-unfair competition law in China is established in market confusion forbidden, but there exists some legal flaws in both system constitution itself and the implementation, for example, the lack of explicit definition upon some core concepts and the absurdness in protecting condition, which leads to our Anti-unfair competition law poorly co-ordinating intellectual property law when it comes to the invalid patent. Therefore, the co-ordination between these two laws should be enhanced, and the protection provided by Anti-unfair competition law should adhere to the principle of benefit, limited and necessity, so that the balance between free competition and market order could be kept. Specifically, when the design of famous commodity, which functions as package or decoration, is distinctive, non-functional and could be utilized as trademarks, it shall not to be copied by other unauthorized market operators of the competitive relation jointly. Besides, the improvement of our country’s protection system could not only focus on the legal texts and application of rules, but also the position of Anti-unfair competition law during protecting design whose patent right has ceased. And the ultimate criteria for the unfair competition behavior shall not be set up by morals.The article is divided into three parts, as introduction, text and conclusion. As to the text, there are three parts together:The first chapter analyses the foundation of the limited protection by Anti-unfair competition law. The article realizes that the protection is based on the general principle which says free imitation is included in free competition and basic laws of market economics. As a subject of legal relationship, design is on the cross section of patent law and Anti-unfair competition law. The second chapter is to analyze the design(which has protected as a patent) protection according to Anti-unfair competition law in China. The first section is about legal text and its flaws. The second section is on the basis of the law implement and the problems with it. The third chapter is to analyze the protecting conditions. Based on the analysis of necessity and feasibility, the article studies the protecting conditions under the Anti-unfair competition law. And three proposals related to the perfection of our legal system.