The Research On Consumer Protection In The Regulation Of Commercial Signs Passing Off

The action of commercial signs passing off indicates the action conducted by one market player to make consumers confused and gain the competitive advantage from others by passing off the commercial signs of others.Recognition function of commercial signs is based on the recognition of consumer.In commercial signs passing off cases,for one part,consumers are the objects of unfair competition actions,for the other,they are the receivers of the results and buyer of products.The protection of consumer is the main goal of anti-unfair competition law.But in the regulation of commercial signs passing off action,the protection of consumer is not enough both in legislation and jurisdiction.In the jurisdiction part,most courts ignore the goal of anti-unfair competition law to protect consumer and operator at the same time.Judges overprotect the owner of commercials and occupy the place of consumer protection.In the legislation part,consumer protection only exists in legislative goal and lack practical rules in detail,the problems of which include:(1)The distinction of consumer protection depending on different laws is not clear;(2)The consumer factor cannot be clarified when judging whether the action belongs to commercial signs passing off;(3)Consumers do not have an effective way to safeguard their legal rights.Consumer is the main factor when judging whether the action belongs to commercial signs passing off.Once ignoring consumers,regulation of commercial signs passing off will be impossible.Actually,constitutive requirement of commercial signs passing off includes massive consumer protection factors:(1)Confusion consequence resulting from passing off can be attributed to the harm of recognition interest of consumers;(2)The competitive relationship between the plaintiff and the defendant is actually the contest of limited consumer resources;(3)Awareness of commercial signs should be connected with the standard of consumer recognition.When judging whether the action belongs to commercial signs passing off,Judges shall take all these factors into consideration and which is the indirect protection of consumers.However,the indirect protection of consumer is imperfect and in a low degree.The true protection of consumer should be built on a systematic base and combined with the demand of consumers.Consumer in passing off cases refers to the consumer need to purchase and use goods or accept service.Market players paying attention to the purchase action also belong to consumers.Consumer interests can be divided into the interests of overall level and the interests of individual.The interests of overall level are only reflective interests.Consumer interests harmed by passing off are mostly interests of individuals.As a matter of fact,we should emphasize the protection of individual consumers.Consumer interests are always mixed with the interests of commercial signs owners and public interests,so we should distinct the differences.The protection of anti-unfair competition law to consumer can be divided into direct way and indirect way.The difference of them depends on whether consumers and their representatives can file a lawsuit.Most courts just follow the indirect way to protect consumers and none of the consumers can file an anti-unfair competition lawsuit using anti-unfair competition law.But in this kind of situation,consumers cannot get enough protection.From indirect way to direct way is the trend of consumer protection in anti-unfair competition law.In order to deal with the consumer protection problems in regulation of commercial signs passing off actions,certain changes should be made,which include:(1)Make clear the different scopes of consumer protection of different laws;(2)Use consumer survey as the evidence when judging whether it belongs to passing off;(3)Entitle consumer protection organization the right to file an anti-unfair competition lawsuit.Anti-unfair competition law,Trademark law and Consumer rights protection law all emphasize consumer protection as their legislative goal.We should clarify the protection mode and protection scope of different laws,so that we can be more targeted when regulating passing off.Recognition condition of consumers is the key point of judging whether it constitutes likely of confusion and consumer survey is the best evidence of it.Consumer survey can improve the protection standard of consumers,but in current judicial practice,few judges use consumer survey when hearing cases.It is high time we should make certain changes.The right of action of consumer organizations indicates that consumer protection organizations can directly file a lawsuit to defend the interest of their members or themselves.Article 17 of revised draft of Anti-unfair competition law(Manuscript)stipulates the right for suit of individual consumers,but this regulation ignores sociality of consumers.It is more appropriate to entitle consumer protection organizations the right to file a suit against passing off.