Study On The "Have Certain Impact" In Confusion Clause Of "Anti-Unfair Competition Law"

Twenty-four years after the First Enactment of the Unfair Competition Act in 1993,the Anti-Unfair Competition Act was amended in 2017 and amended article 6 to include a pure prohibition of confusion.One of the highlights of the Anti-Unfair Competition Act of 2017(the Anti-Unfair Competition Act of 2017)compared to the Anti-Unfair Competition Act of 1993 is the The "well-known goods" and "unique" restrictions of the body were removed and replaced with the uniform "with some influence" as the object of anti-regulatory confusion-the qualification requirement of commercial identification,with some progress,but for the "with some influence" as the object of anti-regulatory confusion-There are still some problems and disputes about the qualification requirements of commercial identification.First of all,some scholars think that in the confusion of anti-regulation,it is unreasonable that the logo must meet the "certain influence" pre-requirement,article 6,paragraph 4,of the Anti-Unfair Competition Law 2017 is the bottom clause to regulate the confusion.There is no precondition for "having an impact" on commercial marking,and international treaties such as the Paris Convention for the Protection of Industrial Property and the Model Law on The Anti-Unfair Competition Law do not suggest that commercial marking should meet the "certain influence" restrictions for confusing acts.Article 10 2(3)of the Paris Convention provides that "the following acts shall be prohibited: 1.Any act that may cause confusion in the premises,products or business activities of a competitor".It can be seen from the above-mentioned articles that,unlike Our Anti-Unfair Competition Law,the Paris Convention is only a general provision for confusion,which should be stopped as long as the consequences of confusion are caused in commercial activities,and there is no limitation in the Convention that confusing markings need to meet the requirement of "some effect".Therefore,some scholars think that the possibility of confusion should be used as the establishment of anti-unfair competition regulation confusion,should not be confused commercial logo should be limited to "some influence" situation,which will not be conducive to the overall regulation of unfair competition in the market.In the second chapter,the author draws the conclusion that "there is a drop of influence" as the qualification of confusing object is necessary by comparing the susceitive complaint,the German improper imitation behavior and the Japanese confusion behavior,taking into account the purpose of the anti-regulation confusion behavior in our country.Secondly,although the anti-law confusion clause defines the scope of the object of confusion by means of "having some influence",the meaning and determination rules of the "certain influence" component itself are not clearly defined by the relevant law.When the court determines whether it is a confusing unfair competition,it generally consists of two steps,the first of which is to consider whether the "business identity" meets the "certain effect" and the second step to make a similarity between the two parties’ business identity.If the commercial logo does not meet the premise of "having some influence",the basis of rights does not exist and the plaintiff cannot claim that the defendant’s conduct constitutes confusion.It can be seen that it is of great significance to clarify the meaning of "having some influence" and to identify ideas.However,"some influence" is after all an abstract concept,and the law and relevant judicial interpretation do not further explain and provide for the meaning of "some influence" and the rules of determination.There are also many opinions in the academic circles on the connotation of certain influences,such as "identification function","wellknown","well-known commodities" and so on,which are not agreed upon,then this is not conducive to the specific application of "some influence" in judicial practice.Confusion clause "has a certain impact" elements is to confuse the object of commercial identity of the limited role,the purpose of this paper anti-regulatory confusion behavior,analysis of the protection of the rights and interests of the content and boundaries,so as to clearly "have a certain impact" on the confusion of the true meaning of the object qualification,after argumentation and analysis,the "has a certain impact" elements implied the commercial identification function and goodwill requirements.After argumentation and analysis,the author believes that the "certain impact" elements are not only the requirements of commercial logo visibility,but should contain two levels of meaning,the first level is the requirements of business identity with recognition function;The meaning of these two dimensions is progressive in turn,from shallow to deep.Then,this paper in the clear confusion clause "has a certain impact" on the commercial identification function and goodwill requirements,and then respectively explore the identification function and goodwill requirements of the specific identification ideas.In the recognition function identification idea,can be combined with the distinctive characteristics of the identity and the stable use of these two conditions to consider,only if both conditions meet the requirements,the identity can have the recognition function.For the identification of goodwill requirements,the first step is to update the goodwill judgment concept,give up the goal of accurate measurement of goodwill,take a neutral approach,for the commercial logo first in its goodwill radiation scope to protect,but not for this purpose,for the implementation of malicious counterfeit actors,can break through the "some impact" of goodwill geographical restrictions.Secondly,to clarify some considerations of goodwill,in determining whether the logo meets the requirements of "some influence" elements for goodwill,the first thing to consider is the existence of sales evidence,sales evidence and consumers are closely related,can let consumers directly perceive the goods,is to determine the existence of goodwill and the most direct evidence of scope;The quality and goodwill of the goods are positively correlated.Goodwill consideration is a dynamic process,with the development of the times,there will be new considerations and guidance.