Research On The Application Of The Anti-unfair Competition Law To Malicious Trademark Squatting

With the continuous development of market economy,increasingly fierce market competition,operators’ brand awareness is enhanced,and the degree of attention to trademarks is constantly improving.In recent years,China has also become a big country in the number of trademark registration applications,but with the increase of the number of applications,the phenomenon of trademark squatting is also repeatedly banned.For malicious registered trademark of the trademark law regulation mainly reflects in the trademark application,objection and invalidation stage,not only established the application and use shall follow the principle of honesty and credit,and the application should have real intention to use,also established for the for the purpose of use and abuse prior rights and registered trademark revoked and invalidation system.However,from the perspective of the regulation status of malicious squatting,it is indeed insufficient to rely solely on Trademark Law for regulation.The act of maliciously squatting trademark violates commercial ethics and constitutes unfair competition.Many prior rights and interests cannot bear to be disturbed by it and resort to "Anti-Unfair Competition Law" for substantial justice.However,in practice,courts have different opinions on the illegitimacy of malicious squatting,and there are even opinions that malicious squatting should be regulated by administrative procedures.Adhering to the problem consciousness,this paper intends to analyze the unfair competition in the act of malicious squatting trademark registration through three chapters,in order to contribute to the practice.Adhering to the problem consciousness,this paper intends to analyze the unfair competition in the act of malicious squatting trademark registration through three chapters,in order to contribute to the practice.The first chapter summarizes the object of malicious squatting of trademark registration in practice,including: 1.The registration of the prior right object other than the trademark(such as name,portrait,design patent,name,etc.);2.Seizure registration of unregistered trademarks that have certain influence;3.The registration of registered trademarks.The trademark squatting can be divided into good faith and bad faith because of the subjective state of the doer,and the good faith trademark squatting is not liable.Secondly,the relevant provisions of the Trademark Law and the Anti-Unfair Competition Law are sorted out,and it is found that both laws provide the regulatory basis for malicious squatting acts to constitute unfair competition acts.For malicious registered trademark of the trademark law regulation mainly reflects in the trademark application,objection and invalidation stage,not only established the application and use shall follow the principle of honesty and credit,and the application should have real intention to use,also established for the for the purpose of use and abuse prior rights and registered trademark revoked and invalidation system.In the Anti-Unfair Competition Law,the regulation of the act of malicious snatching of trademarks is mainly embodied in Article 6 of the Anti-Counterfeiting Clause,that is,the unauthorized use of other people’s commercial marks such as commodity names,enterprise names,names,domain names,etc.which have certain influence.The act causing confusion constitutes the act of unfair competition and prohibits others’ malicious use.This article not only covers the right of precedence,but also provides protection for commercial signs in commercial activities.At the same time,it also provides provisions for the bottom of the list to avoid incompleteness,so as to provide regulatory basis for the subsequent use of malicious squatting after successful squatting.Yet when the prior interest holders according to the anti-unfair competition law active against malicious registered person or the plaintiff’s actions constitute ACTS of unfair competition’s plea,the court’s opinion of malicious registered behavior constitute ACTS of unfair competition that is differ,some courts insisted on administrative procedure in advance about the malicious registered trademark is ACTS of unfair competition behavior of the defenses,claims and present,put forward the problems existing in the practice.The second chapter discusses the necessity and rationality of applying anti-unfair competition law to regulate the act of malicious squatting of trademarks through analyzing the deficiency of trademark law regulation and the unfair competition of malicious squatting of trademarks.First of all,the deficiencies of trademark law regulation include the overall protection of registered trademarks only,the emphasis on the protection of fake goodwill,the insistence on the priority of administrative procedures,the lengthy procedures for safeguarding rights,and the lack of compensation for damages of prior rights and interests other than registered trademarks.Secondly,the law against unfair competition is a law to promote the efficient allocation of resources,and the trademark is one of the market resources,which meets the premise of application.In the face of the new type of unfair competition behavior,in practice,the improprieties of the behavior are judged by determining that the behavior violates the business ethics and the principle of honesty and credit.However,through sorting out the cases,it is found that the court has different determination of business ethics,which basically falls into three types: 1.Explain commercial morality with the principle of honesty and credit;2.Determine business ethics with the help of industry practices;3.Judges create their own rules.In this paper,on the basis of the methods of analysis and empirical analysis,further defined in the treatment of the object and other legal family when cross the cognizance of business ethics,namely in the application of the sequence,shall first apply to industry practices that business ethics,when there is no industry practice or industry practices have no legitimacy and efficiency,and with the aid of the principle of good faith to explain business ethics.At the same time,when the new type of unfair competition coincident with the adjustment object of other jurisdictions appears,its legislative spirit should be used for reference and absorption.Finally,through the analysis of the economic function of trademark and the characteristics of the act of malicious squatting of trademark,it is pointed out that the act of malicious squatting of trademark violates commercial ethics and has unfair competition.The third chapter is the specific application of the Anti-Unfair Competition Law to the act of malicious snatching of trademarks.First of all,by summarizing the meaning of malice stipulated in trademark legislation and the discussion on malice in the academic circle,combining with the performance of the actors of maliciously squatting trademarks in practice,this paper clarifies that the malice of maliciously squatting trademarks is the malice of damaging others,and analyzes and identifies the factors that should be considered for malice.Secondly,according to the behaviors of malicious squatting actors after registration,malicious squatting can be divided into: 1.Malicious squatting with goodwill and popularity;2.Malicious squatting with simple obstruction;3.Grabbing economic benefits of malicious squatting.Finally,it further clarifies the specific provisions for the use of all kinds of malicious squatting of trademarks: 1.Article 6 of the Anti-unfair competition law shall apply to the malicious squatting agent with goodwill or popularity who uses it after successful squatting and causes confusion among consumers;What does not cause confusion among consumers belongs to the category of damaging neutrality and freedom of competition.2.If the malicious squatting actor of pure obstruction does not take action after the squatting,thus forming an obstruction,Article 2 of the Anti-unfair competition law shall apply.3.If a malicious squatting agent who grabs economic benefits regards a trademark as a commodity and engages in such acts as peddling,malicious complaint and litigation after squatting,Article 2 of the anti-unfair competition law shall apply.