On The Identification Of The Confusion Conduct In Anti-Unfair Competition Law

In 2017,the Standing Committee of the National People’s Congress formally passed the Amendment of the Anti-Unfair Competition Law.Article 6 of the Amendment is a purely anti-confusion clause,which returns to the essence and legislative purpose of the Competition Law and further improves the confusion behavior system.However,in judicial practice,the identification of confusion still refers to the identification theory and rules of trademark confusion in trademark law.As a confusion act,it is different from trademark confusion in trademark law in theory and system.It is impossible to simply apply the theory and experience of confusion identification in trademark confusion rules.Therefore,by comparing the confusion act in both Trademark Law and in the Anti-Unfair Competition Law,this paper refines the theory and method of confusion identifying in the Anti-Unfair Competition Law,and clarifies the core meaning and scope boundary of confusion in the Anti-Unfair Competition Law.This paper is divided into three parts: abstract,text and conclusion.The text is divided into the following four chapters:Chapter Ⅰ,"Overview of Confusing Acts in Anti-Unfair Competition Law".This chapter briefly introduces the general meaning of confusion,the legal characteristics of confusion and the types of confusion.It is clear that confusion in Anti-Unfair Competition Law refers to the behavior that causes confusion consequences.It includes two types of confusion: confusion caused by the use of commercial marks and confusion caused by means other than commercial marks.Among them,"confusion caused by the use of commercial marks" is the main type of confusion.Through the discussion of this chapter,we can learn the framework of confusion behavior,which guides the analysis of following chapters.Chapter Ⅱ,"The theoretical basis for the identification of confusion in anti-unfair competition law".This chapter compares the basic theory of confusion in trademark law and the Anti-Unfair Competition Law,points out that the confusion system directly maintains the competition order by prohibiting unfair competition,while the trademark law indirectly maintains the competition order by privatizing some commercial marks.Compared with trademark confusion,the special feature of the confusion theory lies in the adoption of behavioral legitimacy.and use the principle of acquisition.The analysis of this chapter provides a theoretical basis for the identification of confusion in the Anti-Unfair Competition Law and its specific content.Chapter Ⅲ," Overall Rules for Confusing Acts in Anti-Unfair Competition Law ".This chapter first analyses the judicial status quo of confusion identification after the amendment of the Anti-Unfair Competition Law,and points out that there are problems in the elements,means and scale of confusion identification in judicial practice.On this basis,the identification elements,modes and scales of confusion in the Anti-Unfair Competition Law are analyzed respectively.Confusion is divided into four elements: subject,object,mode of action and consequence;multi-factor consideration is adopted in the means of identification,and dynamic consideration is given to the factors with dynamic change characteristics;restraint and modesty are the principles of interpretation in the scale of identification.Through the analysis of this chapter,it clarifies the identification elements,means and criteria of confusion behavior in the Anti-Unfair Competition Law,and guides the specific analysis of the content of the identification elements of confusion behavior in the following chapters.Chapter Ⅳ," Essential Rules for Confusing Acts in Anti-Unfair Competition Law ".Combining with the above analysis,this chapter identifies and analyses the object,mode and consequences of confusion.Firstly,it analyses the object of action,i.e.the commercial mark with certain influence,and makes a comprehensive analysis from the connotation,the scope of identification and the factors of identification.Secondly,it analyses the mode of action,i.e.unauthorized use,and points out that unauthorized use lacks the necessity of identification because of confusing the right status of the unauthorized object of action.At the same time,it analyses the connotation of unauthorized use.Finally,the author analyses the consequence of behavior,i.e."the possibility of confusion".This paper holds that the consequence of behavior refers to the possibility of confusion,and that the possibility of confusion is based on the concept of confusion.Therefore,the author first analyses the meaning of confusion,and points out that due to the differences in theory and system between confusion and trademark confusion in the Anti-Unfair Competition Law,the confusion theories in modern times are about reverse confusion and after-sale confusion.Expansion does not apply to confusion in the Anti-Unfair Competition Law;secondly,the meaning of confusion possibility is analyzed,and the identification factors of confusion possibility are analyzed from the perspectives of consumers and actors.Chapter Ⅴ,"Suggestions for the Improvement of Judicial Recognition of Confusing Acts in Anti-Unfair Competition Law",combined with the full text,this chapter puts forward suggestions for the judicial identification of confusing acts from two aspects: the constitutive elements of confusing acts and the principle of identifying confusing acts.