Theory Of Design In The Continual Protection Of Anti-unfair Competition Law

The design appears in the market in the final form of shape and packaging of the products,it has a direct impact on all kinds of market subjects,so it is easy to say design is very important to the market economics.With the rapid development of economy,the protection of trade dress or trademark in patent law and trademark law of the traditional continental and Anglo American legal system have become increasingly unable to meet the needs of the development of the market economy.So the Anti-Unfair Competition Law is just to make up the blank of patent law and trademark law after the expiration of the appearance design.The supplementary protection on intellectual property rights of the Anti-Unfair Competition Law,especially the protection of trade dress or trademark,has become one of the most important legislation points of the anti unfair competition law.And this is consistent with the trend of historical development,meeting the needs of the development of the market economy.The focus of scholars is not about the negative impacts on free competition result from the protection of intellectual property rights thoroughly,but the different consequences will happen when intersection produced in the protection of intellectual property rights and free competition.These consequences include: the protection of design reflects the concept that government encourages innovation and market subjects pay high attention to product quality and maintenance of free competition;but reducing standards of protection of design too much,may lead to monopoly,further can’t meet the needs of free competition in market economy.After the analysis of the western market economy system and legal development,it is not difficult to find that whether and how the intellectual property,for example,the design,can be protected is closely related with the market economy.When pursuing the free competition of the market economy in the early stage,the thresholds for protecting those designs which the droit has been terminated are very high,strict and cautious aiming to promoting the economic activities.With the rapid development of the economy,the voice of justice then emerges;therefore,the protection mode of the confusion standard is gradually established.The standard is refined in the later cases,in other words,the distinctiveness and aesthetic functionality are discussed concerning the protection of the designs that the droit has been terminated.According to the patent law,patented right of the design may lose effectiveness due to the expiration of the protection period or other reasons,as a result,they enter into the public domain and the market entity can use and copy them freely.However,a legal act can suffice to various components of rights leading to overlapping of rights;that means even if one of the rights terminates,it may not lose effectiveness.Especially the design itself can be the subject matter in various legal relations.It is widely recognized that if a legal act meets the constitutive requirements of the Anti-Unfair Competition Law,it can thus seek the protection of that law in addition to the intellectual property law system.But this kind of protective is complementary and limited.In the context of the Chinese legal system,if the product using this design is well-known and the design right is granted,the design is thus protected by the patent law.However,when the design right is terminated and the design is used by other market entities,if it leads to the confusion of the origin of the product by the consumer,then this act is regarded as wrongful.It damaged the legal interests obtained by the former design right holder and hence constitutes an unfair competition.But if the customer does not confuse or mistake the use of that very design,that design can then no longer be protected according to the Anti-Unfair Competition Law.In addition,from the view of foreign cases,the first condition of packing or design protected according to trade dress is the inherent distinctiveness of packaging and design,or has the second meaning on the market.In USA,the product packaging and products design are distinguished.The differences were analyzed between packaging and design in the case of Wal-Mart,and points out that inherentdistinctiveness property of text-logo and product packaging comes from the fact:the specific texts are posted on the products,or the product are put into the specific packaging are often used to identify the source of products.Although the text and packaging have practical function,the main role of them is to identify sources.Consumers can recognize a brand through this symbol,so this symbol is equivalent to the manufacturer’s instructions to consumers.But consumers will not distinguish the source of products by design,it cannot be used to identify the source even if the design is very special.That is to say,the purpose of product packaging is to identify sources,and the main effect of the appearance of the products is practical and decorative functions.Therefore,the court held that consumers may be confused with the original products and imitation products if they link to the manufacturers through the design of products,the second meaning is the condition of the protection of design from products,but the design of the products is not regarded as inherent distinctiveness.The court’s conclusion is that inherent distinctiveness may exist in the packing of the products,instead of the shape of products,the party claims rights must provide evidence that the shape of products has second meaning,then the rights can be protected on the basis of the Article 43(a)of the Lanham Act.However,it is more complex and difficult to prove the existence of the second meaning compared to inherent distinctiveness.So compared with packaging,the standard of protection of design has been improved largely.But in the current international practice,the packing and design of the products still have other legal protection after the termination of the patent rights if they meet the standards of significance and confusion-preventative.By on,the design does not necessarily enter into the public domain after termination of patent right.Specifically to the situation of our country,paragraph 2of article 5 of the anti-unfair competition law expressly prohibit “the unauthorized use of the specific name,packaging,decoration of well-known commodities,or use the name,packaging,decoration with the well-known goods approximate,confused and the well-known goods of others,make the mistaken for the well-known goods"behavior.Which is clearly expressed constitution of the anti-unfair competition law to protect the object’s appearance design elements.When basis cannot be carried out on the end of a patent right for design patent law protection,if the goods of appearance design or the packaging of the goods,can satisfy the anti-unfaircompetition law to involve the protection condition of peculiar to well-known goods packaging,decoration,can according to the anti-unfair competition law to protect.But this kind of protection is additional,conditional,it must meet the well-known goods,unique packaging decoration,to prevent confusion and non-functional requirements of four.The reason for the termination of a patent right for design set is so tough conditions need to combine our country specific economic requirements to determine.Truly,as the pursuit of free competition of the market economy in our country at present,so that the extent of protection of intellectual property rights is slightly less than,to the development of innovative small and medium-sized economies may play a limited role,but is still at the initial stage of socialism in our country,the economy is the foundation of all things,at present,the survival of the fittest,superior bad discard the free economy can promote the development of the country,more better economies are preserved,and better promote economic development and lay a foundation for the improvement of the rule of law.This article mainly expounds on different countries on the practice of the protection of the termination of a patent right for design,analysis of influence,on the basis of domestic classic case.Get the thoughts on the protection of the termination of a patent right for design requirements in China.At the same time,make contribution for the future of our country in the aspects of the perfect by reference to the overseas development and practice.