According to statistics, in 2006 alone, the national industrial and commercial authorities investigated and handled cases based on the "Anti-Unfair Competition Law" There were 12,384 cases with a case value of 206 million yuan. The additional protection for intellectual property rights provided by the "Anti-Unfair Competition Law" is mainly reflected in the following aspects:
1. Regulate unfair competition behaviors related to intellectual property rights. The Anti-Unfair Competition Law lists 11 types of unfair competition behaviors, 5 of which are related to intellectual property rights, namely counterfeiting, false representation, false publicity, commercial defamation and infringement of trade secrets.
2. Provide supplementary protection for intellectual property rights.
① Compensatory effect on the Patent Law. For example, the Patent Law protects design patents when it comes to the protection of prior use rights, but stipulates that the protected design patents do not conflict with prior use rights. The prior right to use must be protected in accordance with Article 5(2) of the Anti-Unfair Competition Law and the State Administration for Industry and Commerce’s “Several Provisions on Prohibiting Unfair Competition Acts of Counterfeiting the Unique Names, Packaging, and Decoration of Well-known Goods” .
② Compensatory effect on the Copyright Law. The objects protected by my country's Copyright Law are literary and artistic works, but the title of the work cannot be protected separately by the Copyright Law because it is not an independent work. This can only be done in accordance with the anti-counterfeiting law of the Anti-Unfair Competition Law. theory to stop it.
③ Compensatory effect on the Trademark Law. my country's Trademark Law adopts the principle of registrationism in the protection of trademark rights and mainly protects registered trademarks. Article 5(2) of the Anti-Unfair Competition Law provides protective provisions for well-known commodity marks, which actually includes unregistered trademarks within the scope of protection.
3. Regulate unfair competition in the implementation of intellectual property rights. When enforcing intellectual property rights, if an intellectual property owner abuses its advantageous position to implement tying and additional conditions, set predatory prices, and engage in unfair competition such as dumping, this is a relatively typical act of unfair competition and the Anti-Unfair Competition Law should be applied. To regulate.
2. Defects in the protection of intellectual property rights in the "Anti-Unfair Competition Law"
1. The scope of unfair competition in the field of intellectual property rights is too narrow and does not New unfair competition behaviors lack effective regulatory power. For example, infringement of unregistered trademarks, squatting on registered trademarks, infringing on the titles of works or other books and periodicals, specializing in the packaging and decoration of other people’s well-known products, squatting on domain names, etc. be included within the scope of adjustments to existing laws.
2. There is a lack of general provisions on unfair competition, and the law enforcement agencies are not given the right to identify it, so they cannot fully protect intellectual property rights.
3. There are no provisions to regulate the abuse of intellectual property rights, and unfair competition behaviors that abuse intellectual property rights cannot be effectively controlled.
4. The provisions regulating intellectual property monopoly are not perfect enough. Some multinational companies take advantage of their advantageous position and use intellectual property protection as a means of monopoly to curb the development of others in order to control and monopolize the market. The Anti-Unfair Competition Law cannot effectively regulate these behaviors.
3. Several problems existing in the use of the Anti-Unfair Competition Law by the industrial and commercial authorities to protect intellectual property rights
As the competent administrative agencies authorized by the Anti-Unfair Competition Law, the industrial and commercial authorities It is necessary to increase law enforcement efforts, consciously use the Anti-Unfair Competition Law to protect intellectual property rights, and give full play to the additional protective role of this law in protecting intellectual property rights.
1. The awareness of using the Anti-Unfair Competition Law to protect intellectual property rights should be enhanced, the ability to enforce the Anti-Unfair Competition Law should be improved, and the role of this law in protecting intellectual property rights should be fully utilized.
2. Fully understand the convenience of industrial and commercial departments using the Anti-Unfair Competition Law to protect intellectual property rights. It is convenient for industrial and commercial departments to use the Anti-Unfair Competition Law to protect intellectual property rights. The first is the initiative of supervision and inspection. The industrial and commercial authorities may, in accordance with the authorization of the Anti-Unfair Competition Law, take the initiative to supervise and inspect unfair competition behaviors and exercise administrative law enforcement powers. The second is the legitimacy of investigation and evidence collection. When investigating and punishing acts of unfair competition, the industrial and commercial authorities may investigate and collect evidence in accordance with their powers. The third is the convenience of resolving disputes. From the perspective of saving legal resources and facilitating dispute resolution, administrative relief is a simple and easy way to resolve disputes.
3. Correctly apply the law to apply regulations to infringement of intellectual property rights. For example, the acts of counterfeiting other people's registered trademarks and unauthorized use of other people's business names will be governed by the Trademark Law. Any unauthorized use of another person's business name or the fraudulent use of another person's name will be handled in accordance with Article 21 of the Anti-Unfair Competition Law and Article 53 of the Product Quality Law.
4. Actively strengthen the protection of business secrets in accordance with its authority. The State Administration for Industry and Commerce has formulated "Several Provisions on Prohibiting Infringement of Trade Secrets" in accordance with the "Anti-Unfair Competition Law", and the industrial and commercial authorities can proactively handle relevant trade secret disputes in accordance with their authority.
5. Carefully handle the conflict between trademark rights and trade name rights. When dealing with such conflicts, in addition to adhering to the principles of protecting prior rights and rights coverage, the principle of protecting fair competition should be applied. The "Opinions on Solving Several Issues in Trademarks and Business Names" promulgated by the State Administration for Industry and Commerce stipulates: "The words in the trademark and the size of the business name are the same or similar, causing confusion to others about the source of market entities and their goods or services ( (including the possibility of confusion), thus constituting unfair competition, shall be stopped in accordance with the law.”
6. Regulation of unfair competition behaviors related to intellectual property rights that are not provided for in the Anti-Unfair Competition Law. question. Unfair competition behaviors that are not expressly stipulated in the Anti-Unfair Competition Law must be identified and dealt with based on the principle of "good faith". In the long run, in order to strengthen the function of the Anti-Unfair Competition Law in protecting intellectual property rights, the law must be revised, add general provisions, and add as many items as possible that have already appeared in real life but cannot be regulated by traditional intellectual property laws. typical unfair competition behaviors, and give full play to the protective role of intellectual property rights.
7. Promote the revision of the "Anti-Unfair Competition Law" to strengthen its function and role in protecting intellectual property rights, especially its protective function in protecting intellectual property rights. Industrial and commercial authorities should carefully summarize the experience and problems in law enforcement practice, and actively promote the revision of the Anti-Unfair Competition Law to make it more complete and operable, and truly exert its protective function for intellectual property rights.