Study On The Protection Of Anti-unfair Competition Law For The Title Of Work

It has been more than 25 years since the promulgation of the Anti-Unfair Competition Law in 1993.During this period,the controversy over the protection of the title of the work has emerged one after another.However,the original provisions of our laws are more principled,general and vague,so that judicial practice lacks clear guidance.Scholars hold different opinions on the protection of the title of work in China's academic circles.Some scholars have argued that titles should be protected by the Anti-Unfair Competition Law(hereinafter referred to as "Anti-Law"),and some scholars oppose this kind of protection.As of today,no unified conclusion has been formed.This paper is divided into four parts.Through the analysis of the status quo of the judiciary and the status quo of legislation,the two major problems of the current name of the work of our country are protected by Anti-Law,that is,whether the name of the work should be protected by Anti-Law and what clauses are applicable to protect it.The first part introduces the status quo and problems of the protection of the title of the work under the Anti-Unfair Competition Law.It starts with the status quo of the judiciary and the legislation,and explores the attitude of the legislature and the judiciary to its protection.In terms of legislation,the names of Anti-Law protection work before the revision of China are applicable to Articles 5 and 2,corresponding tothe revised Articles 6 and 2.In the judicial aspect,the court mainly applies the old Anti-Law Article 5(2)(ie,the new Anti-Law Article 6(1))to protect the title of the work.On the basis of the narrative of the status quo of legislation and judicature,it is proposed that the protection of the title of the work is worthy of further discussion.It should be protected by Anti-Law and what provisions should be specifically applied for protection.The second part is to demonstrate the rationality and conditions of applying the Anti-Unfair Competition Law to protect the title of the work.In this part,we first introduce the two academic viewpoints of support and opposition in the academic circles.Among them,the opposition puts the title of the work unprotected according to the public domain theory,the theory of personal rights,and the classification of goods.The support group discusses the rationality of applying anti-legal protection from the perspectives of moral theory,economic theory and consumer theory.The author agrees with the supports' point of view,because the name of the work with certain influence carries great commercial value,and the behavior of others' unemployed constitutes unjust enrichment.In order to promote the overall creative creation of the society,it saves consumers' search costs and realizes anti-injustice.The legislative purpose of the competition law needs to be protected.The title of the work protected by the Anti-Unfair Competition Law should meet certain conditions,including the relationship between Article 2 and Article 6 and the relationship between the work and the commodity.The mainstream view is that between Articles 2 and 6 of the Anti-Law is the relationship between general clauses and specific clauses.After the amendment of the new law,Article 6(1)shall apply if the title of the work constitutes a certain product name.If the provisions of the item are not met,the item 4 of the fourth item shall be directly applied,and the relevant Article 2 shall no longer apply.Commodity is an interdisciplinary concept.Based on the theory of economics and commodity theory and the classification theory of objects,the author demonstrates that the works have been commercialized and used.They have the use value and value necessary to become commodities,and belong to a broad category of goods.The third part explores the specific conditions for the protection of the title of the work in Article 6(1)of the Anti-Unfair Competition Law.First of all,it expounds the different viewpoints of the academics on the "has a certain impact" standard,and draws the conclusion that it follows the "well-known" standard of the old law.Secondly,the work is divided into a single work and a series of works.By the relatively mature theory of the "secondary meaning" of the United States,it is more difficult to prove that the name of a single work is more "common" than the name of the series.",thus becoming the object of the protection of Article 6(1)of the new Anti-Law.Finally,the criteria for confusion and misidentification in the law and the scope of protection for misunderstanding in practice have been studied,and it has been clarified that the criteria for “confusing possibility” should be adopted.The author regards the work as a “class” commodity alone.As long as the agent objectively absorbs the goodwill of the right holder and causes confusion on the same kind of goods or cross-category goods,it can constitute an anti-regulation system for unfair competition.The fourth part,summary.For the problems in the first part of this paper,combined with the specific discussion of the first three parts,the paper summarizes and analyzes the core point of the paper: the name of the work with certain influence should not fall into the category of public domain,when it has the "secondary meaning" It shall be protected as an unregistered trademark by Article 6(1)of the new Anti-Law;when it does not have a “secondary meaning”,it shall be protected as another legal right by Article 6(4)of the new Anti-Law.