1896 Germany took the lead in formulating the world's first anti-unfair competition law based on the code, and many countries followed suit and formulated relevant laws. The legal system against unfair competition is increasingly enriched and improved. With the implementation of China's market-oriented reform and opening-up policy, the market economy has gradually developed, and competition has resumed its due position in China's economic life. Competition has played both positive and negative roles. In the market, there have been various acts of unfair competition. Therefore, in September, China promulgated the Anti-Unfair Competition Law of People's Republic of China (PRC), 1993, which indicates that China has entered a new stage of a country ruled by law by using legal means to stop unfair competition. This law lists all kinds of unfair competition behaviors prohibited by law, among which Article 5 of China's Anti-Unfair Competition Law clearly stipulates: "Operators shall not engage in market transactions by using the following unfair competition means to harm competitors." The second item is "unauthorized use of the unique name, packaging and decoration of well-known commodities or the use of names, packaging and decoration similar to well-known commodities, resulting in confusion with other well-known commodities." Make the buyer mistakenly think it is a well-known commodity. " It is not difficult to see that this is the legal basis for the anti-unfair competition law to protect well-known commodities and prohibit others from counterfeiting the unique names, packaging and decoration of well-known commodities. So in judicial practice and real life, how to use the existing legal basis to protect well-known commodities and curb unfair competition? The meaning of well-known commodities and the constitutive requirements of counterfeit well-known commodities are discussed below.
I. Legal Meaning and Identification of Well-known Commodities
(A) the legal meaning of well-known commodities
Modern Chinese Dictionary interprets "well-known" as "well-known". As a legal concept, well-known commodities generally appear in the anti-unfair competition law. For example, Article 1 of Japan's Anti-Unfair Competition Law, revised by 1990, stipulates that "it is forbidden for actors to use the name, trade name, trademark, container, packaging or any other mark used for other people's goods or services in the same or similar way, resulting in confusion with other people's goods, business premises or services. It is not difficult to see that the conditions of various commercial trademarks protected by Japan's anti-unfair competition law are well known. China's Anti-Unfair Competition Law has neither a definition nor explanatory provisions on well-known commodities, but the State Administration for Industry and Commerce has made relevant provisions in the third paragraph of Article 3 of Several Provisions on Prohibiting the Unfair Competition of Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities, that is, "Well-known commodities refer to commodities that enjoy a certain reputation in the market and are well known to the relevant public. "According to this regulation, well-known commodities must have a certain popularity among the relevant public. So what is the relevant public? The relevant public should refer to the specific purchaser who has a trading relationship with the commodity. Therefore, judging a well-known commodity should not be based on whether anyone knows the commodity, but on the condition that the commodity is well-known in the relevant market field. It should be said that well-known commodities are the product of market competition, and the purpose of identifying well-known commodities is mainly to protect the legitimate interests of commodity operators, rather than being isolated from specific operators.
(2) Identification of well-known commodities
In real life, it is not a problem to identify a commodity that has many years of history and is familiar or necessary to consumers in a certain area as a well-known commodity, and it is also easily accepted by consumers and all parties. But generally speaking, what conditions or requirements well-known commodities should meet is a problem that should be considered and solved. Because China's Anti-Unfair Competition Law has no clear definition of well-known commodities, some local laws and regulations have made common sense provisions, trying to solve this problem in a certain region. For example, the second paragraph of Article 9 of the Regulations on Anti-unfair Competition in Beijing stipulates that the well-known commodities mentioned in this article refer to the following commodities: (1) commodities that have won prizes in international awards recognized by relevant departments in China; (2) Being recognized as a well-known commodity by provincial and ministerial government departments, industry organizations or consumer associations; (3) Commodities that have been recognized by consumers and enjoyed a long-standing reputation in relevant markets; (4) Other commodities widely publicized in relevant markets and enjoying high reputation. Another example is the second paragraph of Article 8 of the Regulations on Anti-Unfair Competition in Shanghai: The well-known commodities mentioned in the preceding paragraph refer to: (1) commodities with recognized well-known trademarks or well-known trademarks; (2) Commodities that have won prizes in international awards and have been recognized by relevant state administrative organs and trade associations; (3) Commodities that are known to relevant consumers and have a certain market share and high popularity. As can be seen from the above provisions, the provisions of the anti-unfair competition law are relatively unclear. Although the effectiveness of local regulations is limited to some extent, we have made some useful explorations. It has played a positive role in concrete practice. There are similarities and differences among the provisions, which makes the relatively general provisions achieve the purpose of further clarification.
In the trial of the case, the people's court expressed its opinions on the identification of well-known commodities through relevant judgments. For example, in the case of Harbin Beer Co., Ltd. v. Harbin Shengshidan Beer for unfair competition, the plaintiff Harbin Beer Co., Ltd. thought that "Harbin Beer" was a unique name of a commodity, while the defendant Harbin Shengshidan Beer Co., Ltd. sold its beer in the market under the name of "Harbin Beer" without permission, causing losses to it, and requested the court to order Harbin Shengshidan Beer Co., Ltd. immediately. Harbin Shengshidan Beer Co., Ltd. thought that "Harbin Beer" was a unique name of a well-known commodity. Harbin Intermediate People's Court found out the following facts through court trial: Harbin Beer Co., Ltd., founded in 1900, is the earliest beer production enterprise in China, and Harbin Beer is the main brand of the company. After 100 years' development, the company has formed Harbin Beer Group, headed by Harbin Beer Brand. At present, it is the largest beer producer in Northeast China, with an annual output of 1 500,000 tons, and spending more than1100 million yuan on advertising in various media. The promotion of "Harbin Beer" is sold in more than 20 provinces and exported to more than 20 countries and regions in Europe and Asia. In 2002, Harbin beer single brand production and sales ranked third among the national peers. Accordingly, the Harbin Intermediate People's Court held that "the beer produced by Harbin Beer Co., Ltd. can be recognized as a well-known commodity according to the production time, region, production and sales volume, market share, ranking of the commodity among similar commodities, advertising investment made by merchants for commodity promotion and consumers' familiarity with the product".
From the above local regulations and judicial precedents of the people's courts, it can be seen that the identification of well-known commodities is not clearly stipulated in the Anti-Unfair Competition Law, but all aspects are making useful attempts to combat unfair competition, protect fair competition and protect well-known commodities. On the basis of comprehensive analysis of various opinions, the author thinks that the following factors should be considered in identifying well-known goods: 1, the production time of its goods; 2. Sales volume of commodities; 3. Market share of commodities; 4. Commodity advertisement; 5. Consumers' awareness of commodities; 6. Awards of commodities. Only by comprehensively considering these factors can we have an accurate identification of well-known commodities.
While analyzing the identification conditions of well-known commodities, it should be noted that well-known commodities are not honorary titles, and their identification conditions are not licensing conditions, but products in market competition. In the case of unfair competition disputes, the purpose of identifying well-known commodities is to protect the legitimate interests of the operators of the commodities. In real life, there are many kinds of goods. Because of its different nature, market field and market structure, and different competitive conditions, it is difficult to use overly strict specific standards in the process of identifying well-known commodities. Therefore, when identifying well-known commodities, it is necessary to comprehensively consider the above factors, but also according to the specific situation, not rigidly adhere to the conditions. As the Civil Law Office of NPC Law Committee said: "How do you know what kind of goods are well-known goods? You can draw a broader standard, that is, unauthorized use or similar use of other people's commodity names, packaging, decoration, generally refers to other people's goods are well-known goods. Otherwise, why not use or approximate other people's commodity names, packaging and decoration instead of using your own commodity names? The reason is that other people's goods have a certain popularity and are more popular. " The State Administration for Industry and Commerce stipulates in the first paragraph of Article 4 of Several Provisions on Prohibiting Unfair Competition in Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities that the name, packaging and decoration of commodities are used in the same or similar way without the authorization of others, which is enough to cause the buyer to misunderstand, and can be recognized as well-known commodities. The application of this "reverse principle" enlarges the scope of cracking down on counterfeiting in the protection of well-known commodities, and at the same time, it is concise and easy to operate, which is more conducive to legitimate operators and to maintaining normal economic order. We believe that in the absence of definition and regulation of well-known commodities in the Anti-Unfair Competition Law, all aspects have explored in real life and judicial practice, and have a certain understanding of the necessary conditions or elements of well-known commodities, so that everyone has a perceptual understanding of well-known commodities and understands their characteristics. At the same time, the "reverse principle" overcomes its shortcomings, expands the scope of protection and complements each other.
Two, the name, packaging and decoration components unique to counterfeit well-known commodities.
(a) the object of counterfeiting must be a well-known commodity.
The second paragraph of Article 5 of China's Anti-Unfair Competition Law stipulates that the act of counterfeiting the unique names, packaging and decoration of well-known commodities is an act of unfair competition and is prohibited by the Anti-Unfair Competition Law. On the other hand, the law protects the unique names, packaging and decoration of well-known commodities, in other words, the unique names, packaging and decoration of well-known commodities are protected, while non-well-known commodities are not. As for the protection of well-known goods and non-well-known goods, as Mr. Wang Liming said: "The degree of protection is different, only the latter can be regarded as the infringement object of counterfeiting infringement, and thus the anti-unfair competition law can be applied to obtain protection. Obviously, whether it is well-known is the key to the correct application of the law. " Therefore, the protected products must be well-known commodities, whether from the perspective of prohibiting counterfeiting the unique names, packaging and decoration of well-known commodities or from the perspective of protecting well-known commodities. It can be seen that one of the constituent elements of the unique name, packaging and decoration of counterfeit well-known commodities is that the object of counterfeiting must be well-known commodities.
(two) the unique name, packaging and decoration of well-known commodities.
The second component is the unique name, packaging and decoration of well-known goods. The name, packaging and decoration of counterfeit goods must be unique to well-known goods. Paragraph 2 of Article 3 of Several Provisions of the Administration for Industry and Commerce on Prohibiting Unfair Competition in the Name, Packaging and Decoration of Counterfeiting Well-known Commodities stipulates that "uniqueness in these Provisions means that the name, packaging and decoration of a commodity are different from those of related commodities and have distinctive features". Therefore, whether it can be identified as "unique" requires a clear understanding of whether it is shared by related commodities and whether it can be "significant".
Generally speaking, the common commodity name, packaging and decoration refers to the commodity name, packaging and decoration that have been widely used in a certain field and recognized by traders. In terms of content, those commodity logos that directly indicate the quality, composition and function of commodities are generally universal, such as beer, liquor, soda and so on. Generic names cannot distinguish between operators and producers, so it is impossible and unnecessary to protect specific users. Generally speaking, the name, packaging and decoration of common goods do not have obvious distinguishing features, while "unique" names, according to some regulations, refer to well-known goods that are unique and significantly different from common names. Therefore, the unique name, packaging and decoration are the original names, packaging and decoration of the goods produced by the operators themselves. In marketing, it has become a prominent symbol of goods, and is linked with the brand image of goods. "Unique" commodity names, packaging and decoration are created by operators, which are different from general names. Whether a unique name is unique to a commodity depends on whether the unique name is first used by the commodity operator. Generic names have no obvious characteristics. They are widely used by related products and are a kind of public wealth. Therefore, generic names should not be used exclusively by a certain operator, otherwise it will hinder fair competition in the market and even be detrimental to the protection of consumers' interests. Whether the name is universal and distinctive in the market pays more attention to the recognition of similar operators in the market. The unique name "reflects and embodies the business reputation and commodity reputation of operators and their well-known commodities to a certain extent, and is also the symbol of their corporate image and their high-quality and high-reputation commodities".
Taking the case of unfair competition such as beijing ditan hospital v. Jiangsu Aifute Medical and Health Care Company as an example, 1984 Beijing No.1 Infectious Disease Hospital, the predecessor of ditan hospital, successfully developed a disinfectant that can quickly kill various hepatitis viruses, named "84" hepatitis disinfectant, and later renamed it 84 disinfectant. 84 disinfectant produced by ditan hospital 1984 was transferred to more than 30 manufacturers in China by ditan hospital on March 197. Ditan hospital sued Ford for using "84" disinfectant as its product name without the plaintiff's permission, which constituted unfair competition and should bear civil liability. The defendant Ford Company disagreed, and the case was tried in the first instance and the second instance. After that, the Supreme People's Court rejected the plaintiff's claim. The people's court said in the judgment of the second instance of this case that "the common name of a commodity cannot obtain the exclusive right to use the unique name of a well-known commodity. When identifying generic names, we should not only identify the commodity names that have been included in national or industry standards, professional reference books and dictionaries as generic names, but also identify the generic names of operators in the same industry. For nouns that have been commonly used by operators in the same industry, we should also identify the generic names of the goods. " In the case of "84 disinfectant", 1984 was named "84 disinfectant" after successful research. This name is the special name of the new product, which embodies the distinguishing features from other similar products. After the plaintiff developed "84 disinfectant", many enterprises were licensed to produce this product through technology licensing. There are forty or fifty manufacturers of similar products in China, and most of them use "84 disinfectant". "84 Disinfectant" product has become the meaning of related products in the market process of 10 years. It should be noted that the distinctive features of commodity names are not immutable. With the change of the market and the passage of time, a unique name can also be transformed into a common name. Once this happens, the conditions for legal protection will be lost.
Another example: In the above unfair competition case, Harbin Beer Co., Ltd. v. Harbin Shengshidan Beer Co., Ltd., and the beer produced by Harbin Beer Co., Ltd. is the earliest beer brand in China. After hearing the case, the Harbin Intermediate People's Court held in the judgment that Harbin Beer produced by the plaintiff Harbin Company can be recognized as a well-known commodity, and "Harbin Beer", as the abbreviation of Harbin Beer, has been advertised by Harbin Company for many years. It has been deeply rooted in people's hearts and recognized by consumers, becoming the name of Harbin beer, a well-known commodity. The unique packaging and decoration of well-known commodities must be unique to well-known commodities and must also be unique names of well-known commodities.
At the same time, packaging and decoration are two related but different concepts. According to the Provisions of the State Administration for Industry and Commerce on Prohibiting Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities, packaging refers to the auxiliary materials and containers used on commodities to distinguish them from similar commodities and facilitate carrying, storage and transportation. Decoration is the arrangement and combination of words, patterns and colors attached to goods or packages to distinguish them from similar goods. Obviously, packaging has the function of identification and convenient carrying, storage and transportation, while decoration has the function of identification and beautification. It can be attached to both goods and packaging, and its basic composition is composed of three elements: words, patterns and colors, and the arrangement and combination of these three elements, which are different and often closely related. Because the decoration of goods is not only a part of goods, but also a part of packaging sometimes.
For example, Yanji Pharmaceutical Factory began to develop and produce "Plum antler essence" from 197 1. Its packaging and decoration are designed by artists from Shanghai Advertising Decoration Company, and its main feature is that the bottom of the box is bronze sika deer horn. Since the product was put into production, it has been sold well both inside and outside the province and has been well received by users. Yanji No.2 Pharmaceutical Factory thought that "Plum Antler Essence" sold well, which was convenient for the planning of 1993, and began to produce "Plum Antler Essence". Yanji No.2 Pharmaceutical Factory takes the packaging and decoration of Yanji Pharmaceutical Factory as a model to design the packaging and decoration of products. The bottom surface, color, product name and text, and sika deer horn pattern of the packaging box were completely copied and confused with the products of Yanji Pharmaceutical Factory, which made the buyer mistake Yanji Pharmaceutical Factory for "Plum Blossom Deer Antler Essence" and its behavior was investigated by Yanji Industrial and Commercial Bureau.
(3) Used for the same or similar purposes.
Under what circumstances will counterfeiting cause unfair competition to operators, that is, using the same or similar name, packaging and decoration of well-known commodities. Only by using the same or similar goods can counterfeit products be confused with well-known goods in terms of unique names, packaging and decoration, so as to confuse counterfeit products with well-known goods. Its fundamental purpose is to confuse producers and operators, so as to produce the result of market confusion.
In general, this kind of fraud is divided into two parts. One is to completely fake the unique name, packaging and decoration of other people's well-known goods, that is, to do the same use. Its performance is that the name, packaging and decoration of goods are completely consistent with the unique names, packaging and decoration of well-known goods, and there is no difference from the words and graphics used to the appearance, format and color. Operators use this means to make fakes in order to achieve confusing results. In real life, this kind of anti-counterfeiting means is easy for consumers and users to misunderstand and lead to purchase, but it is relatively easy to identify this kind of behavior in judicial practice. Second, the use of approximation, the so-called approximation, is to make minor and irrelevant changes to the unique name, packaging and decoration of well-known goods, and keep the main parts to preserve the main style and distinctive features. In general, with the general concern of buyers, misunderstanding or confusion will occur. It is relatively difficult to determine the general purpose. First of all, we should compare the whole structure with the main parts. If the overall impression generated by the overall structure shows that the main parts are similar, that is, the similarity or difference of the subsidiary parts does not hinder the identification of forgery. Secondly, the identification of counterfeiting is based on whether ordinary buyers pay attention to whether there is misunderstanding or confusion, rather than paying special attention to it or relying on experts' eyes and special tools and means.
For example, a chemical company sued a chemical plant for counterfeiting the unique packaging of well-known goods and conducting unfair competition in decoration. After the establishment of a chemical company, the plaintiff specialized in the production of putty paste, putty powder and other decorative materials, which were well received by users, enjoyed a high reputation and share in the market, and won various honorary certificates many times. Its registered trademark was recognized as a famous trademark in Tianjin by Tianjin Industrial and Commercial Bureau. In 2002, the plaintiff redesigned, packaged, decorated and obtained the design patent. A chemical plant of the defendant has been selling similar products with packaging and decoration very similar to that of the plaintiff since April 5438+0, 2006. The plaintiff demanded to stop the infringement and compensate the economic losses. During the trial, the plaintiff presented the evidence, and both the original and the defendant's bags were presented in court. Both putty packages are nylon woven bags. About one third of the front of the bag has an upward opening arc, and the upper part of the arc is light red. In the light red part, from left to right, there are eight striking characters of "Excellence, recognized brand", and the following are their respective registered trademarks. The background color on both sides below the arc is red, and the bar code mark and weight mark are located below the arc from left to right. Below it, the plaintiff's package reads XXX putty paste, and the defendant's package reads XX putty paste in white bold font, with a square light red background: "Instructions for use, precautions, etc." , and then the factory name and address ". After trial, the court ruled that XXX putty paste produced by the plaintiff was a well-known commodity, and its packaging and decoration were unique to well-known commodities. The defendant's behavior belongs to unfair competition, and a chemical plant of the defendant is not allowed to use packaging and decoration to produce and sell putty paste products and compensate the plaintiff for the corresponding economic losses.
In this case, a chemical company's packaging and decoration features are outstanding, and the main color is red. The two eye-catching color blocks of the packaging are distinguished by an upward opening arc, and the overall structure is clear and unforgettable. However, the overall result of the defendant's putty paste packaging bag is exactly the same as that of the plaintiff's packaging, only a small part of it is different, but it does not affect the overall approximation. Generally, paying attention to the distinction will lead to confusion and misunderstanding, so it is determined that its counterfeiting behavior is completely correct.
(4) Causing misidentification
The act of counterfeiting well-known goods is that counterfeiters confuse their counterfeit goods with well-known goods, and confusion occurs when ordinary consumers misunderstand. The purpose of market confusion can only be achieved because of consumer misunderstanding, which generally includes two situations. First, there is misunderstanding, and objectively buyers are confused about related goods; Second, it may lead to misunderstanding, that is, as long as counterfeiting may mislead consumers, unfair competition can be established. This is very important to combat counterfeiting. If the requirement of "causing misunderstanding" must actually appear, then it is undoubtedly more difficult to protect well-known commodities. Due to the differences in local markets, buyers and other factors, it may be mistaken. Once counterfeiting can be stopped, it will also increase the burden on the commercial competition of counterfeit well-known commodities, and urge relevant departments to take corresponding measures in time to crack down.
(five) unauthorized use
There are two ways to use the unique name, packaging and decoration of other people's well-known goods. One way is that the operator obtains the ownership or use right of the unique logo of well-known goods through legal channels, such as transfer and licensing, which is legal and does not infringe on the rights and interests of others, let alone unfair competition; ; Another kind of behavior is that the operator uses the unique name, packaging and decoration of other people's well-known goods without the permission of the unique name, packaging and decoration of well-known goods, and its behavior constitutes counterfeiting. Unauthorized use seriously violates the will of the obligee and reflects the subjective intention of counterfeiting.
Germany promulgated the anti-unfair competition law from 65438 to 0986, which has a history of one hundred years. However, with the development of China's reform and opening up and social market economy, market competition is becoming increasingly fierce. The Anti-Unfair Competition Law promulgated in China from 65438 to 0993 has played a very good role in curbing unfair competition in the market. Maintain market economic order. With regard to the protection of well-known commodities, we should conduct in-depth research on the existing basis, and clarify the significance of well-known commodities, various elements of protection, and specific operability from legislation, so as to accelerate economic development under the condition of fair competition, make the view of honesty and credit deeply rooted in people's hearts, and establish an honest and harmonious society.