| China adopts the registration and acquisition system of trademark rights.Although the latest amendment to the Trademark Law passed in April 2019 brings the examination of the intention of use into the process of administrative authorization,the amendment has not yet entered into force,even if it enters into force,this clause can only play a limited preventive role in advance,because the trademark law has provided for the maliciously preemptive trademark objection,cancellation and invalidation system of administrative relief.The biggest problem in trademark law to curb malicious injection is that there is a dilemma of intertwined political procedure and civil procedure in the application of the above administrative relief in civil proceedings.And because of the trademark law,the civil liability for malicious preemptive injection In practice,even if the court breaks through the restriction of administrative procedure,it can not raise the illegal cost of malicious robber.In order to curb the malicious injection act,this paper discusses the feasibility of regulating the act under the framework of anti-unfair competition law,the specific regulation path and the specific civil liability of the malicious robber.This paper follows the idea of finding the problem-putting forward the solution-the concrete implementation of the solution-civil liability assumption,and the specific chapter is as follows:The first chapter is to demonstrate the rationality and legitimacy of theapplication of anti-unfair competition laws and regulations to control malicious injection.This chapter mainly discusses from two angles: first,it analyzes why we should jump out of the framework of trademark law to regulate malicious injection behavior.Although the trademark law stipulates the principle of good faith,the cancellation system that is not used for three years after registration and the invalidation system for malicious preemptive injection can negate the trademark right effect of malicious preemptive injection.In addition,the trademark law also provides for the defense of the right of first use and the defense of liability for the unused use of the trademark.On the face of it,trademark law has been put in place to regulate malicious preemptive injection.Perfect provisions have been made,but these provisions only involve administrative relief,which means that trademark disputes based on malicious preemptive injection belong to cases where administrative and civil procedures intersect.If compliance with the provisions of the procedural law will lead to excessive protection of rights and litigation cycle,but if the restrictions of the administrative pre-procedure are broken,the trademark of the malicious robber will be declared null and void,and the low registration application fee will be lost.According to the provisions of trademark law,it is not necessary to bear the civil liability for damages,the recipient can not get sufficient relief,the malicious robber is not adequately punished,and can not achieve the effect of curbing malicious preemptive behavior.Second,analyze why the reverse is used.Unfair competition law governs malicious preemptive injection.Both the anti-unfair competition law and the trademark law not only protect the personal legitimate interests of operators,but also protect the interests of consumers and the order of market competition.Both of them have the same legislative purpose and purpose.The application of anti-unfair competition law to regulate malicious injection will not lead to the conflict of value orientation.The essence of trademark law to malicious injection regulation is to protect unregistered trademarks,and the protection of unregistered trademarks is an important part of the anti-law,so the two can complement each other and apply to each other.Because malicious preemptive act itself constitutes unfair competition act,the right base is obtained by improper act.It is of course unreasonable to engage infollow-up acts after the foundation,so there is no intertwined problem with administrative procedures in the application of anti-laws and regulations to control malicious preemptive acts.Different from the lack of liability clause in trademark law,the anti-unfair competition law clearly stipulates that the actor of unfair competition should bear civil liability,supplements the trademark law and greatly increases the illegal cost of the actor,which can achieve the purpose of curbing malicious preemptive injection.The second chapter discusses the anti-legal path of non-use malicious injection behavior which does not use trademark after malicious injection.First of all,after analyzing the constituent elements and characteristics of malicious preemptive injection,the malicious preemptive injection is divided into non-user malicious preemptive injection and user malicious preemptive injection according to the perspective of anti-unfair competition law.Among them,non-user malicious preemptive injection includes hoarding malicious preemptive injection with simple registration and hoarding and profit-making malicious preemptive injection after preemptive injection.Secondly,after determining the nature of the general provisions of Article 2 of the Anti-unfair Competition Law,this paper analyzes the applicable mode of the general provisions of the Anti-unfair Competition Law in practice,and finds that the applicable damage result model is applicable,that is,the application of the anti-unfair Competition Law.The mode of regulation of non-use malicious injection in Article 2,paragraph 2,of the Law includes the mode of business ethics,that is,the mode of regulating non-use malicious injection in paragraph 1 of Article 2of the Anti-Law.In fact,the judgment of whether it violates business morality is to judge whether its behavior is improper or not,so it is concluded that the damage result model should be applied.Finally,this paper analyzes the general constituent elements of non-user malicious preemptive injection in accordance with unfair competition behavior,that is,preemptive injection behavior belongs to competitive behavior,and this kind of preemptive injection behavior violates the principle of good faith.It disrupts the order of fair competition and is unjust.The third chapter discusses the anti-legal path of using malicious injection aftermalicious injection.First of all,this paper analyzes the changes of Article 6 of the Anti-unfair Competition Law revised in 2017,and finds that it is more in line with the provisions of the Trademark Law: the scope of protection of commercial marks has been expanded,which is consistent with the scope of protection of unregistered trademarks in Trademark Law;Changing "famous,unique" to "have certain influence" is consistent with the provisions of trademark law on malicious preemptive injection,and the possibility of confusion caused by the use of trademark law is the same as the connotation of trademark law.Secondly,by comparing the constituent elements of malicious preemptive injection and commercial confusion,it is found that the two are There is overlap in the constituent elements,malicious preemptive injection and use of confusion is essentially commercial confusion,which is regulated by anti-unfair competition laws and regulations.The fourth chapter discusses the civil liability of the injector who constitutes unfair competition from the point of view of civil liability.First of all,malicious robbers need to bear the responsibility to stop the infringement.As the most widely used form of civil liability,it does not require the subjective state of the actor,nor does it require the behavior of the actor to cause actual economic damage to the legitimate rights and interests.However,in order to achieve the balance between the interests of both parties,personal interests and public interests,the restrictions on this form of responsibility should be considered in the type of malicious preemptive injection.In particular,when the malicious robber is judged to bear this form of liability,it will harm the interests of consumers and the public interest,or the perpetrator will bear the responsibility.The cost of paying far exceeds the damage caused by it;secondly,the malicious robber should bear the liability for damage,which is the key to improve the illegal cost of malicious robber.The calculation method and order of damages in anti-unfair competition law and the legal compensation for commercial confusion are consistent with trademark law,which reduces the obstacles in the practical application of the court.In order to further achieve the purpose of curbing malicious preemptive injection,this paper adapts to the economic law of punitive damages from the nature of economic law,and punitivedamages can better curb malicious preemptive acts,demonstrating the rationality of introducing punitive damages into anti-unfair competition law. |
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