The Understanding And Application Of The Obfuscation Act Clause Of Anti-unfair Competition Law

Today,with the vigorous development of market economy,eommercial competition is becoming increasingly fierce,the means and behaviors of unfair competition are becoming increasingly diversified and complicated.We made major amendments in anti-unfair competition law in 2017.As one of the major highlights of this revision,Article 6 of the anti-unfair competition law is amended as a pure anti-counterfeiting and confusion clause,which focuses on the issue of commercial logo counterfeiting and confusion.Many problems existing in article 5 of the anti-unfair competition law(1993),such as wrong judgment of two important elements of commercial marks and incomplete legislation,have also been properly solved.However,while making up for its own shortcomings,this major repair of the obfuscation behavior clause has also triggered controversy and discussion on the understanding and cognition of "commercial sign","certain influencee and other concepts in the academic circle.In addition,new problems have arisen in connection with article 6 of the anti-unfair competition law and article 58 of the trademark law,it is also necessary to consider the coordination between relevant legislation and anti-unfair competition law in aspects of intellectual property protection and regulation of confusing behaviors.This article aims to make a targeted study on the above issues and promote the gradual improvement of obfuscation behavior clause.The first part of the article sorts out the meaning and recognition of obfuscation.By further analyzing the concepts of "confounding" and "confounding behavior",this part aims to clarify the cognitive differences existing in the academic circle.On this basis,make a certain interpretation on the understanding and identification of the obfuscation after the modification of the modification of obfuscation clause.The second part of the article generally analyzes and discusses commercial obfuscation from four aspects.First,it discusses the meaning of the newly introduced element of "having certain influence".First,expression of "has certain influence"article 6 of the anti-unfair competition law can not be equal to the provisions of article 5,paragraph 2 of the anti-unfair competition law in 1993 "famous goods specific name packaging and decoration" meaning.However,it can be synonymous with the meaning of "has certain influence,in articles 32 and 59 of the trademark Iaw.Secondly,it discuss whether the concept of commercial logo should be clarified.The commercial sign concept has not been written into the anti-unfair competition law as expected,and it still cannot be unified from the legislative level.Although the academic community is divided,it should be clear that,frequent conflicts of commercial signs in the current society also reflects the practical urgency of the urgent need to unify and legalize the concept of commercial signs.Its concept legalization should be put on the agenda as soon as possible.Thirdly,it discusses how to connect with article 58 of the trademark law.First,because of the provisions of article 6 of the anti-unfair competition law,Although there is no formal expression of"trademark" in the provisions,the infringer may still apply the anti-unfair competition law to the act of passing off the registered trademark of others as stipulated in article 58 of the trademark law.Then,due to the occurrence of counterfeiting others'registered trademarks in the current society,Compared with the application of "bottom line provision",the application of article 6(1)of the anti-unfair competition law is more realistic and reasonable,and more in line with the original intention of legislators.The third part of the article mainly through the analysis and thinking of the anti-unfair competition cases to further clarify the possible disputes in the judicial application of the obfuscation act clause.For the understanding and identification of the concept of "having certain influence",there are different understandings and practices in "sino-us qualcomm case" and "Shanghai v.Tianjin home inns case".Establishment time,operation scale and industry popularity,there are factors that are considered to have certain influence.lt also gives some enlightenment to the establishment of judicial identification standard which may have certain influence in the future.Second,"Shanghai v.Tianjin home inns case" indicates that when the actor implements the objective act stipulated in article 58 of the trademark law,transferring the application of the anti-unfair competition law does not exclude the application of the trademark law,there is no direct contradiction between them.Third,"kaixinmahua"domain name dispute reflects the importance of the protection of virtual commercial signs.However,due to the application conditions of the obfuscated behavior clause,it cannot effectively bring all virtual commercial signs into the scope of legal regulation and protection.Therefore,we can be considered through judicial interpretation or the formulation of supplementary provisions to further properly protect it.The fourth part of the article is the conclusion.Based on the reality of our country,put forward targeted Suggestions for improvement.First,Referring to the legislative method of clarifying the concept of commercial signs in the draft,and drawing on the legislative experience of other countries and regions in the relevant provisions of confusing behaviors,further integration and optimization of"commercial signs,and other controversial concepts,to speed up the legal process of concepts.Second,establish the corresponding identification standard of "certain influence".At the same time,we can also accumulate the experience of judges on the identification standard of "certain influencee in similar cases in recent years,and then standardize and type the cases by guiding the form of cases,so as to help the framework and improvement of the corresponding identification standard in the future.Finally,Further defined commonness and difference with the trademark law,consider adding confusion cite specific behavior of terms or(a)adding "registered trademark" formal expression in "anti-unfair competition law" article 6,so as to resolving differences at the legislative level,and promoting promiscuous behavior terms accurately apply injudicial practice.