Research On The Acknowledgement Issue Of Packaging And Decoration Right Ownership

Generally speaking,acknowledgement of packaging and decoration right ownership in accordance with the prior user of the packaging and decoration.However,with the increasingly complex transactions,the use of packaging and decoration is becoming diversified.For example,packaging and decoration right ownership shall be considered with other factors where the packaging and decoration used with other's licensed trademark to gain recognition and identifiability.Because the provisions of law on packaging and decoration in China are relatively broad,which lead to a lot of contradictions and divergences in judicial practice in acknowledging the ownership of packaging and decoration right in complex situations.Most of the theories analyze the ownership of rights from the perspective of goodwill and prevention of confusion,but they fail to give a reasonable explanation in the acknowledgement methods.This paper first untangles the relevant theories of the identification of the ownership of packaging and decoration at present.And then starting from the object of the packaging and decoration rights,analyzing based on the mechanism of the generation of packaging and decoration right,drawing on the relevant experience of the identification of the ownership of trade dress in American judicial practice,it finally comes to the conclusion that the principle of prior use principle should be taken as the basis.Specific elements such as usage act,controllers of commodity,consumer perception and so on are also helpful toacknowledge the ownership of packaging and decoration.Chapter one first introduces the overview of the case between JDB and WLJ,and summarizes the focus of identifying the ownership of rights and interests.Secondly,it combs the theories,analyses the shortcomings of the existing theories,and draws the conclusion that the research on the object of packaging and decoration rights and the generation mechanism is the key to the acknowledgement of ownership.Chapter two first discusses the object of packaging and decoration right,and then analyses the relationship between packaging and decoration right,commodities and goodwill.Secondly,it analyses the mechanism of the rights of packaging and decoration.It comes out that the usage act is the basis of packaging and decoration right.Effective usage act requires three conditions: subject,behavior and effect.Finally,the effects on acknowledgement of packaging and decoration right are summarized.Chapter three mainly introduces the relevant experience of American trade dress and judicial practice in identifying the prior ownership of trade marks.Firstly,it introduces the flexibility of American trade dress and the relationship between trade dress and trade mark.Secondly,it introduces a series of typical cases in American identifying the prior ownership of trade mark,and summarizes the methods of identifying the prior user in the United States.Finally,it analyses the reference that American legal system and judicial practice can provide for the acknowledgement of packaging and decoration right ownership in China.Chapter four puts forward several legislative and judicial suggestions on the acknowledgement issue of packaging and decoration right in China.It suggests introducing the concept of "trade dress" to protect the right of all unregistered trademarks with the Anti-Unfair Competition Law.The prior use principle shall be regarded as the basic principle of identifying the ownership of rights and interests,and the prior user shall enjoy the right of packaging and decoration,but other important factors in the mechanism of right also shall be considered.