Study On The Infringement Unfair Competition Determination Of Trademark Merchandising

In recent years,a number of trademark merchandising cases have emerged in judicial practice,but there are differences in the views of the courts.Some courts consider that trademark commercialization is an act of trademark use,which is likely to confuse consumers and therefore belongs to trademark infringement.Some courts have held that trademark merchandising is not an act of trademark use because the shape of the goods after trademark merchandising does not play the role of trademark identification and will not cause confusion to consumers,therefore is not considered as trademark infringement.This article takes the controversy as the starting point to discuss the issues related to trademark merchandising.The traditional function of trademark is to identify the source of goods and services,but with the development of commodity economy,the functions of trademark have been increased,including the function of quality assurance of goods,advertising function and even promotion function and aesthetic function.It is the expansion of the functions of trademarks that has led to the emergence of a new business model of trademark commercialization.The right to trademark merchandising originated in the United States,and has been highly controversial in the judicial practice of the United States.This article discusses the act of trademark merchandising in a narrow sense,i.e.,the act of making part or all of a trademark into the shape of a commodity and selling it,and argues whether this act constitutes infringement.The elements of trademark infringement include trademarked use and causing confusion to consumers.The transformation from two-dimensional to three-dimensional will reduce the distinctiveness of the trademark,and may cause confusion only if the trademark is highly well-known and distinctive.In the case of no trademark infringement,this article considers that the view of requesting protection under the anti-unfair competition law is biased.There are obvious differences between the anti-unfair competition law and the trademark law in terms of protection object,regulation path and protection scope,so the determination of unfair competition should be relatively independent,and the specific elements must be satisfied before the anti-unfair competition law can be applied.The application of general provisions of anti-unfair competition law should require that the competitive act itself is unjustified and no other specific rules can be applied before it can be applied.Combined with the observation of judicial practice,this paper finds that the legal protection of commercial marks in China shows a tendency of over-expansion,and the protection of rights is more and more inclined to trademark owners.The practice and trend of the courts to include post-sale confusion and sponsorship confusion in the scope of trademark infringement regulation in the judicial practice of trademark commercialization is questionable.This article combines China’s current judicial policy and the principle of balancing the interests of intellectual property rights,and argues that trademark infringement should be determined by adopting the confusion theory in a narrow sense.In the light of the current judicial policy and the principle of balance of interests of intellectual property rights,this paper believes that the infringement of trademark merchandising should be determined by strict standards and strict control.