As knowledge and information become wealth day by day, which promotes the rapid development of social economy, as an important legal means to protect human intellectual achievements, it should be a very meaningful topic to explore how to complete the important task of protecting intellectual labor achievements. Intellectual property is essentially a kind of property right that belongs to a specific subject. Before intellectual property is protected as a legal right, its own value and created value are completely in the state of individual protection or public, which is obviously not conducive to technological innovation and the progress of human society. Nearly 300 years have passed since 1624, when Britain promulgated the world's first modern patent law, and 1967, when the World Intellectual Property Organization Convention defined "intellectual property" as a clear legal right for the first time. However, during these three hundred years, the human society has undergone dramatic changes. All this shows that the recognition of intellectual property rights by national laws has played a huge positive role in society, which has raised the protection of knowledge to the height of national will and gained exclusive rights and exclusive income rights within the national geographical scope.
I. Jurisprudential Analysis of Competition Law and Intellectual Property Law
For the first time, the intellectual property law distributes limited intellectual products to the obligee in the form of law, and it can also be redistributed or redistributed through market means such as transfer and licensing, thus safeguarding the interests of the obligee. However, for typical unfair competition behaviors that infringe on intellectual property rights, such as counterfeiting registered trademarks of others, unauthorized use of enterprise names of others, forgery of origin, and infringement of trade secrets, the intellectual property law can only prohibit infringement from the perspective of protecting the exclusive right of the obligee, but it is unable to protect the competitive advantage of the obligee and maintain the normal market transaction order. Competition law is duty-bound to shoulder the heavy responsibility of regulating unfair competition that infringes intellectual property rights.
In the division of China's current legal system, competition law is an important part of market regulation law in economic law. Competition law includes anti-unfair competition law, anti-monopoly law, foreign trade law and other laws and regulations. The direct purpose of formulating competition law is to create a fair and orderly market economic order for micro-market economic subjects and realize fair competition; Its deep purpose is to protect the legitimate rights and interests of consumers and make the whole national economy develop continuously, rapidly and healthily. It can also be seen that the competition law is based on social standard values and protects public interests, which is different from the legislative purpose of protecting individual interests based on individual rights in intellectual property law. However, it can't be said that the competition law and intellectual property law are contradictory, just that the focus of their protection is different. The anti-unfair competition law in the competition law is based on the overall interests of the society, aiming at maintaining the market economic order and protecting the interests of intellectual property owners from the standpoint of the obligee, with the ultimate goal of creating a good competition order, while the anti-monopoly law in the competition law is to regulate the abuse of rights by intellectual property owners from the standpoint of a wider range of market operators and consumers, and also to create a good competition order and achieve fair competition. Therefore, no matter from the internal protection of intellectual property rights or from the external protection of competition law, all roads lead to the same goal.
Unfair competition that infringes on intellectual property rights is not a simple civil tort, but also an act that infringes on competitors for the purpose of competition. One of its tasks is to protect intellectual property rights from the perspective of competition. Because knowledge products are limited and scarce resources, there is a contradiction between them and the needs of commercial economy, and there is also a contradiction between the specificity of intellectual property rights and the free use of knowledge products, which requires legislation to maintain a cautious and reasonable tension between different interests. We should not only safeguard the exclusiveness of rights, but also prevent unwarranted infringement by others, so as to maintain the power source for society to continuously create knowledge products, and also give the public a reasonable space to use knowledge products. For this reason, most countries' intellectual property legislation stipulates the specific circumstances that constitute infringement while confirming rights. Obviously, the intellectual property law only outlines the protection framework and scope of rights from a static perspective, ignoring many related factors in the operation of rights and ignoring the diversity of rights being eroded. For example, a well-known trademark is used by a non-trademark registrant for a completely different product. Although trademark users usually do not compete with trademark registrants, this behavior is related to competition. On the one hand, illegal users abuse it irresponsibly; Will affect the reputation of the trademark, leading to confusion and dilution of manufacturers, leading to the decline of the asset value and competitive advantage of trademark registrants; On the other hand, illegal users unfairly gain an advantage over competitors who have not used the well-known trademark, and use this advantage to improve their competitiveness and put competitors at a disadvantage. According to China's trademark law, this kind of behavior does not infringe on the exclusive right to use a registered trademark, which is beyond the reach of the trademark law. The Anti-Unfair Competition Law can prohibit such acts of eroding other people's well-known trademarks on the grounds of anti-dilution. Competition law appears as a supplementary protection mechanism to overcome the defects of intellectual property law in rights relief. Its purpose is to build a second line of defense for rights protection and provide a remedial relief protection when intellectual property law cannot effectively provide protection. Some scholars vividly describe the competition law as "covering the bottom" where the existing intellectual property law cannot control. Intellectual property law is like an iceberg at sea, and competition law is "water holding an iceberg". For example, paragraph 2 of article 1 of WIPO's Model Provisions against Unfair Competition stipulates that "the application of article 1-6 should not depend on, but should supplement the legislative provisions on other intellectual property topics", indicating that it provides legal protection for patents, industrial designs, trademarks, etc. According to the special intellectual property law, the application of Article 65,438+0 shall not be hindered.
Intellectual property rights have been inextricably linked with market competition since it was confirmed, but this relationship is more prominent under the background of economic globalization. On the one hand, this "prominence" is manifested in the prominent position of intellectual property rights in market competition and the need for protection. For example, the protection of intellectual property rights is not only the protection of intellectual property law, but also the protection of anti-unfair competition law, foreign trade law and criminal law. Some legal systems for protecting these rights are direct protection, some are wide-ranging protection, and some are deep protection, which all reflect the importance attached by national laws to intellectual property rights. On the other hand, the contradiction between the protection of intellectual property as a private right and the maintenance of the whole market economic order is more prominent. In some cases, intellectual property owners use their legal monopoly position to exclude or restrict competition, disrupt the market economic order, and harm the interests of other competitors and consumers. We call this behavior abuse of intellectual property rights. That is to say, on the one hand, intellectual property law focuses on protecting private rights, while competition law focuses on protecting public interests, each with its own emphasis and cannot be confused. On the other hand, we can also see how to find a good balance between protecting the personal interests of intellectual property owners and protecting the public interests of the whole society. In China, the anti-monopoly law in the competition law is mainly used to balance the regulation and protect the interests of intellectual property abuse.
The main legal systems in the competition law, namely, Articles 12 and 15 of the Anti-Unfair Competition Law, Article 55 of the Anti-Monopoly Law and Articles 27 and 30 of the Foreign Trade Law, have made specific provisions on the protection and regulation of intellectual property rights. Below, we will elaborate the protected and regulated intellectual property rights through specific legal systems.
China's intellectual property law is mainly composed of trademark law, patent law and copyright law. The Trademark Law clearly defines the act of counterfeiting a registered trademark as an act of infringing intellectual property rights, and Article 52 of the Trademark Law lists five acts of infringing the exclusive right to use a trademark. At the same time, the laws of various countries also list the act of counterfeiting other people's registered trademarks as the first act of unfair competition. The first paragraph of Article 5 of China's Anti-Unfair Competition Law also clearly regards the act of counterfeiting another person's registered trademark as a manifestation of unfair competition. In addition, Article 24 of the Trademark Law curbs unfair competition by giving priority to trademark owners. In modern society, when a work of art is copyrighted, it obtains the patent right of design and the exclusive right to use a trademark, which is finally transformed into a commercial product and put into the market to bring benefits. Therefore, the possibility of being infringed and used in unfair competition will also increase. Therefore, while the intellectual property rights are protected by the three special laws, the Anti-Unfair Competition Law also regulates unfair competition by means of infringing copyright and patent rights to protect the obligee. If the trademark law, patent law and copyright law take the protection of private rights as the primary purpose and protect intellectual property rights from the inside of rights, the anti-unfair competition law protects the external space where obligees exist from the perspective of public interests and maintaining market economic order. As the famous scholar Kong Xiangjun said, if the three special laws of intellectual property rights are icebergs exposed on the sea, then the anti-unfair competition law is their ocean. This also shows that the combination of "slaughter protection" of intellectual property law and "broad protection" of anti-unfair competition law can achieve the ultimate consistent goal.
What's more, there are separate laws to protect intellectual property rights. In addition to intellectual property law and anti-unfair competition law, there are also protective measures in criminal law with criminal responsibility as the consequence. This means of protection further illustrates the strictness and multi-level nature of the state's protection of intellectual property rights. As intellectual property expert Zheng said, no matter what kind of legal system the protection of rights is written in, as long as the rights as a whole are fully protected, the purpose of legislation will be achieved.
Second, the compensatory protection of intellectual property rights by anti-unfair competition law.
It should be said that the three intellectual property laws, as separate laws to protect intellectual property rights, have played a very good role in rights relief, but it should also be noted that it is unrealistic to use one law to adjust the complexity of social relations designed by intellectual property rights. Even if intellectual property rights are legislated one day, it will not solve all problems. This is the disadvantage of the lack of flexibility inevitably brought about by the standardization and certainty of the law. This requires the supplement of other legal systems, especially in the case that the provisions of the three laws are not smooth, and it is even more necessary for laws such as competition law to play the role of protecting rights holders. On the one hand, the intellectual property legal system itself needs to be improved, just as the Windows operating system needs to be "patched" continuously after completion, and other legal systems need to be "supplemented" without modifying the intellectual property itself. This also makes the existence of anti-unfair competition law make the rights of obligees get timely relief. Specific performance in:
The Trademark Law only protects the interests of registered trademark owners, but the interests of unregistered trademark owners cannot be relieved by this law. At this time, the infringer can bring an unfair competition lawsuit against the infringer according to the Anti-Unfair Competition Law. The patent law only protects patents that have passed the examination and approval of the State Patent Office, but because of the statutory penalty for intellectual property protection, it excludes trade secrets and core technologies that have not yet been patented. Infringement of the rights of this sector can only be achieved according to the Anti-Unfair Competition Law; In addition, those who have not applied for the patent of well-known commodity packaging and decoration can only seek the protection of competition law. This also fully proves that the supplementary protection function of the anti-unfair competition law is playing a role.
Third, the anti-monopoly law regulates intellectual property rights.
Intellectual property, as an important right in private law, can also be said to be a legal monopoly right endowed by law, that is, to enjoy the personal rights and property rights brought about by intellectual achievements at a specific time and in a specific region. This kind of monopoly right is at the cost of free public use to the society when the future right expires, so this kind of monopoly on intellectual property rights is a monopoly within the scope of legal rights. Take the world's first modern patent law, also known as monopoly law, as an example to illustrate this problem. At the same time, however, based on the principle of prohibiting abuse of rights, which is an important principle of private law, any right drive has boundaries. Only when rights are reasonably and necessarily restricted can the right drive of the whole society be harmonious and orderly.
Intellectual property law itself has certain restrictions on the drive of intellectual property rights, such as compulsory license in patent law, rational use of copyright, rights restriction and regionality of the three major intellectual property rights. However, it is undeniable that there are other abuses of intellectual property rights by intellectual property owners, and this is not a problem that can be solved by any intellectual property law. In August 2008, the Anti-monopoly Law of the People's Republic of China was promulgated, which also included the abuse of intellectual property rights to restrict and exclude competition in the market economy, and made clear legal provisions on the abuse of intellectual property rights. The protection of operators' rights provides an exact legal basis. At the same time, the Anti-Monopoly Law also clearly stipulates that this law has extraterritorial effect, which restricts multinational corporations and enterprises from using their monopoly position in the field of intellectual property to exclude or restrict competition.
Because under the current market economy conditions in China, most of them are multinational companies, large enterprises and large groups in specific industries, such as Microsoft and Cisco. They exclude or restrict the competition in China market by refusing permission, tying, price discrimination, merger and acquisition. , maintain their monopoly position, grab a lot of profits, damage the national economy of China and the legitimate rights and interests of consumers. These will be regulated after the implementation of the new Anti-Monopoly Law. Coca-Cola's acquisition of Huiyuan Juice has been subject to national anti-monopoly review, because once the acquisition is successful, Coca-Cola will obtain advanced production technology and trademark use rights in the juice field, which will affect the pattern of the entire beverage market, the interests of other operators and the interests of the final consumers. Therefore, once someone files a lawsuit against Microsoft, it will be reviewed by the Anti-Monopoly Bureau of the Ministry of Commerce, and the key department in the review is the review of whether intellectual property rights have been abused.
Therefore, the key to defining enterprises' use of intellectual property rights to exclude and restrict competition is to examine whether they abuse intellectual property rights, which will be the focus of anti-monopoly litigation in the field of intellectual property rights in the future.