Research On The Protection Of Goodwill

In China, the meaning and extension of goodwill is still not conclusive. Based on different views on the concept and attributes of goodwill, scholars proposed different arguments on manifestation, components and legal liability of goodwill tort in Anti-Unfair Competition Law.Based on research in international conventions, foreign legislation and domestic views of the theory field, this article defines the concept and attributes of goodwill, then bring the concept of the goodwill right and analyses the essence of the right of goodwill, and thus defines the right of goodwill as a intellectual property. Based on this, this article discusses the component and goodwill tort in depth, points out the flaws of our existing laws, and provides some recommendations for the protection of goodwill right.Part I: General theoretical analysis of goodwill and its right. The starting point of the establishment of goodwill right system is to recognize the essence of goodwill and determine the attribute of goodwill right. This part includes two sections. The first section traced the origin of goodwill. By researching the history of law, we determine the concept of goodwill and clarify goodwill as a kind of structural information after analysis and an intangible property. This is the necessary precondition of the goodwill right and legal characterization of goodwill. The second section includes a through analysis in goodwill right, and notes that goodwill has not been explicitly recognized as a right but merely as a legal interest in our existing legislation. But it is rational and rightful to change goodwill to a right. Meantime, based on analysis in different theories, it is more rational and practical to define goodwill as an intellectual property.Pat II: Comparison and reference in legal protection of goodwill right. Foreign stones may serve to polish domestic jade. Regarding the method and scope of protection, this part includes a comparative analysis of different protection mode of goodwill of the major common law countries, civil law countries, and WIPO(World Intellectual Property Organization), especially focuses on their respectively legislation merits and defects, and thus provides a guideline in establishing our goodwill right system.Part III: Status and legislative defects of the protection of goodwill. This part systemizes the legislative status of goodwill right in Civil Code, Anti-Unfair Competition Law, and Criminal Law, discussion of problems and loopholes of various laws when confronting complex and diverse goodwill infringement questions, and making them ready to improve and coordinate goodwill right protection system.Part IIII: Improvement of goodwill right protection system. Based on the previous analysis and demonstration, this part includes some recommendations in building domestic protection system of goodwill right. Firstly, we clarify the legitimacy and rationality of raising goodwill as an independent legal interest of civil rights to have more powerful and more comprehensive legal protection. Secondly, we analyzes goodwill tort liability elements, and find that the subject of goodwill infringement should not be limited to the same industry competitor. General operators, the media and customers should also be recognized as the subject of liability. Goodwill infringement act should also not be limited to fabricating and spreading false facts. Distorting inappropriate remarks and diluting the goodwill can also be infringements. The subjective aspect of Goodwill infringement can be intentional and negligent. Again, we briefly mentioned that to protect goodwill right, it is necessary to do the assessment of goodwill.