During the transformation of China's economic system from a planned economy to a socialist market economy, competition mechanism was introduced, and free competition gradually deepened. In the market economy, the law of competition has played a very positive role in promoting the development of productive forces and optimizing the allocation of social and economic resources. On the other hand, driven by economic interests, there have been various unfair competition behaviors aimed at pursuing high profits. In unfair competition, the most common form of expression is counterfeiting or imitation, which we will discuss in this chapter. Fake or imitation is to crowd out competitors and preserve their competitive advantage. It is to seize the fruits of others' labor and sell their own products, which infringes on the legitimate rights and interests of other operators and ultimately harms the interests of consumers, so it has great social harm.
Article 5 of China's Anti-Unfair Competition Law stipulates four acts of unfair competition:
(a) counterfeiting the registered trademark of others;
(2) Using the unique name, packaging and decoration of a well-known commodity without authorization, or using the name, packaging and decoration similar to that of a well-known commodity, resulting in confusion with other people's well-known commodities, so that the buyer mistakenly thinks it is the well-known commodity;
(three) unauthorized use of another person's enterprise name or font size, so that people mistakenly believe that it is another person's goods;
(4) Forging or fraudulently using quality marks such as certification marks and brand-name marks on commodities, forging the place of origin, and making misleading false representations about the quality of commodities.
This chapter mainly needs to master these four acts of unfair competition.
First, the definition of counterfeiting registered trademarks of others
The act of counterfeiting another person's registered trademark can be said to be a kind of counterfeiting prohibited by anti-law. The essence and function of trademark is to show the source of goods and distinguish different goods. Its power in the market economy is obvious to all. For example, the Coca-Cola beverage in the United States is world-famous, which is also because of its trademark worth $3 billion. In fact, a trademark is an important intellectual property right, which is protected by intellectual property law as well as copyright and patent right. It is a special property created by operators through hard work and capital in market competition and honest management. At the same time, as an industrial property right, a trademark is a kind of material wealth, just like the movable property and real estate capital of an enterprise. It can be said that trademarks have an important role and great value, but in the fierce market competition, the phenomenon of counterfeiting trademarks is common.
According to the statistics of the State Administration for Industry and Commerce, in the past 10 years, * * * investigated and dealt with more than 65,438+million counterfeit trademark cases, and even more unsolved cases. As long as it is a brand-name commodity and a brand-name trademark, it is doomed. As can be seen from the above examples, counterfeit trademarks have become a "public hazard" of the whole society. Therefore, it has also become an unfair competition regulated by the anti-monopoly law. Let's take a concrete look at the relevant provisions of the Anti-Counterfeiting Registered Trademark Law.
China's Anti-Unfair Competition Law and Trademark Law have made corresponding provisions on counterfeiting registered trademarks of others, so this part should be viewed in combination with the contents of Trademark Law. Article 38 of the Trademark Law (page P87): Counterfeiting a registered trademark of another person refers to the act of using the same or similar trademark on the same or similar goods without the permission of the registered trademark owner. Article 5 of the aforementioned Anti-Monopoly Law also stipulates that "counterfeiting another person's registered trademark" is an act of unfair competition. Article 21 of the Anti-Unfair Competition Law stipulates that operators who counterfeit registered trademarks of others shall be punished in accordance with the provisions of the Trademark Law of People's Republic of China (PRC) and the Product Quality Law of People's Republic of China (PRC).
Two. Forms of counterfeiting registered trademarks of others
According to the concept of counterfeiting registered trademarks, we can also see that there are four forms of counterfeiting registered trademarks of others:
1. Use the same trademark as the registered trademark of others on the same commodity.
Used in the same commodity, and the name and design are exactly the same; This kind of fraud can be said to be the lowest form of fraud.
2. Use a trademark similar to the registered trademark of others on the same commodity.
Similarly, on the same commodity, the trademark patterns used are the same as those of others, with similar names, and even homophones and similar characters are used.
3. Use the same trademark as the registered trademark of others on similar goods (the name and pattern used on different but similar goods are exactly the same);
4. Use a trademark similar to the registered trademark of others on similar goods.
If it is used on different kinds of similar goods, the color of the pattern or pattern changes slightly and the name is different.
These four counterfeiting methods are all based on the fact that consumers have not carefully identified trademarks to achieve the purpose of fraud. The four specific forms also have the same elements: first, the trademarks are the same or similar; Second, the goods using trademarks belong to the same kind or similar, and these two conditions are indispensable.
Note that trademark law and anti-law protect registered trademarks. According to the provisions of the Trademark Law, trademarks are divided into two types: one is a registered trademark, and its symbol is the words "registered trademark" or a pattern; One is a temporary trademark, only the trademark itself, without the words and patterns of "registered trademark".
Three, counterfeit or counterfeit the name, packaging and decoration of well-known commodities.
The act of counterfeiting or imitating the unique name, packaging and decoration of well-known commodities also belongs to the act of unfair competition prohibited by Article 5 of the Anti-Monopoly Law. Like trademarks, the unique name, packaging and decoration of goods have the functions of distinguishing the source of goods and marking different goods, so this infringement of the unique name, packaging and decoration of goods is also an important form of counterfeiting or imitation.
(1) Counterfeit or counterfeit objects mainly refer to the unique name, packaging and decoration of commodities.
China's Consumer Law does not give clear legal provisions on the name, packaging and decoration of goods, which can be interpreted according to "Several Provisions on Prohibiting Unfair Competition in the Name, Packaging and Decoration of Counterfeiting Famous Commodities" 1995 issued by the State Administration for Industry and Commerce in July. According to "Several Provisions on Prohibiting Counterfeiting of Well-known Commodities", the unique name of a well-known commodity refers to a commodity name that is unique to a well-known commodity and significantly different from a generic name, except that the commodity name has been used as a trademark. For packaging, regulations refer to auxiliary materials and containers used on commodities to identify commodities and facilitate carrying, storage and transportation. Decoration refers to the words, figures, colors and their arrangement and combination attached to the goods or their packaging in order to identify and beautify the goods.
(2) Identification of well-known commodities
Well-known is a necessary condition, and the second paragraph of Article 5 of the Anti-Monopoly Law stipulates the protection of well-known commodities, because if they are not well-known, others will not be able to take advantage of their competitive advantages, even if they pass off, it will not affect the competition order and harm the interests of consumers. Moreover, the protection of trademarks in the Anti-Unfair Competition Law often extends the protection scope of registered trademarks to non-similar goods, or gives unregistered trademarks monopoly rights, which may lead to the abuse and improper protection of trademarks.
Attention is not to protect well-known commodities, but to protect the unique name, packaging and decoration behavior of well-known commodities, because no matter how well-known commodities are, they are distinguished by these.
In "Several Provisions on Prohibiting Unfair Competition in Counterfeiting the Unique Names, Packaging and Decoration of Well-known Commodities": Well-known commodities refer to commodities that have a certain reputation in the market and are well known to the relevant public. In the specific identification, the first thing to consider is regionality. Many foreign countries have geographical restrictions, that is, well-known products are protected within a certain geographical range, and beyond this range, they are not protected. Secondly, we should consider the relevant public, and there are certain consumer groups, which is related to regionality.
(3) Determination of general purpose:
The difference with trademark misidentification lies in whether the goods are mistaken or the trademarks are mistaken. Misrecognition of goods refers to the misunderstanding of goods when they are similar in whole or basically, and the misunderstanding of trademark graphics. Specific to the case, it is necessary to specifically identify and analyze it.
Four. The act of fraudulently using the name or font size of another enterprise.
The content stipulated in Item 3 of Article 5 of the Anti-monopoly Law.
1. What does the concept clause mean? Enterprise name, also known as trade name, is used to distinguish different manufacturers, that is, the logo or name that distinguishes this enterprise from another enterprise. Well-known firms are also huge intangible assets of enterprises, such as Tongrentang and Guanshengyuan. Enterprise names and trademarks are similar, that is, they both have identification functions. The difference is that the expression form of enterprise name is single, which can only be expressed in words, not in patterns. Enterprise name is used to distinguish enterprises, not to distinguish the goods and services sold by different enterprises. The above is the name of the enterprise.
Let's see the name. Name refers to the personality right of natural persons to set, change and use names. Natural persons have the right to decide, use and change their own names, and have the right to prohibit others from interfering, stealing or counterfeiting.
2. Constitutive elements of fraudulent use of other people's enterprise name or font size.
1) The object being fraudulently used is the enterprise name, and the purpose is also to obtain economic benefits. The fraudulent enterprise name or font size is well-known and can produce economic benefits.
2) Misuse of commodities causes misunderstanding among consumers. In order to make consumers mistakenly think that this kind of goods is the same as those that have been fraudulently used, it will cause confusion. A basic element.
3) Intention is subjective. The Consumer Law also stipulates that the unauthorized use of another person's enterprise name or name causes misunderstanding, which constitutes unfair competition. Unauthorized use refers to intentional use without the permission of others. These three items are indispensable.
Five, imitation or fraudulent use of quality marks and marks of origin.
The quality marks stipulated in China's anti-law refer to certification marks and famous marks.
(1) Certification mark refers to the product quality certification mark, which refers to the mark that after being certified by an authoritative international or domestic quality certification body, the enterprise that meets the certification requirements is issued a certificate and allowed to use it according to the regulations. At present, the certification marks approved by China's State Bureau of Technical Supervision are Fiona Fang, Great Wall and People's Republic of China (PRC), and Fiona Fang is divided into qualified marks and safety certification marks. The Great Wall logo is a special certification mark for electronic products.
(2) The famous brand mark is an honorary mark of high-quality products, which is usually issued by relevant organizations or departments. Divided into two levels, the first level is the national level, with gold medals and silver medals; The other level is ministerial level and provincial level, with the word "excellent" logo pattern.
(3) The mark of origin is a sign marked on the commodity to show that the commodity originated in a specific country or region, and its essence is a geographical indication.
Six, counterfeiting should have the conditions.
Whether the actor's behavior constitutes counterfeiting should be judged from two aspects:
(1) The counterfeiters are subjectively intentional.
Article 5 of the Anti-Law uses the word unauthorized, and its general meaning also refers to "unauthorized use", that is, intentional subjective state. The subjective element is intentional.
(two) enough to cause confusion to consumers.
This article belongs to the content of objective elements, that is, it objectively confuses consumers. The first is the confusion of commodity subjects, that is, deliberately mixing one's own goods with others' goods. Among the four acts stipulated in Article 5 of the Consumer Law, the first three are the confusion of such subjects, which are serious acts of unfair competition, directly deceiving consumers and harming their interests. Destroyed the normal market competition order. Secondly, the quality of goods is chaotic, that is, fraudulent use of certification marks, brand-name marks and other quality marks, forgery of origin, causing misunderstanding among consumers and ultimately infringing on the interests of operators.
In addition, the identification of confusion in China includes both the confusion that has actually occurred and the confusion that may be caused. Actual and potential.
Seven. Legal liability for forgery or imitation (see page P 102 for details)
Punishment is stipulated in the Anti-Law, Trademark Law and Product Quality Law. If the case constitutes a crime, criminal responsibility shall be investigated according to law.
Chapter VI Infringement of Trade Secrets
First, the origin and development of trade secret legislation
The protection of trade secrets came into being after the industrial revolution, mainly because of the development of industry, some product formulas were unwilling to leak out, thus gaining economic benefits that others did not have. The earliest protection of trade secrets occurred in Britain and the United States, and it was first determined by case law in Britain at 185 1 (textbook 108, case), which belongs to the act of revealing trade secrets in contracts. /kloc-in the middle of 0/9, it spread to the United States again. This is a common law country. Germany and Japan are the earliest countries in the civil law system. In fact, with the increase of investment in science and technology, there have been many cases of loss of technological achievements, and the protection of trade secrets has gradually been paid attention to. In 1960s, the International Chamber of Commerce defined it as industrial property right for the first time. Now, trade secrets have been gradually regarded as general property and intellectual property right, and the World Intellectual Property Organization has also included trade secrets in the scope of adjustment, which belongs to the content of intellectual property right. It is also an important intellectual property right in China.
Second, the legal basis for the protection of trade secrets:
The legal basis of trade secret protection has always been a controversial issue, for example, it is based on contractual relationship, some say it is trust relationship, unjust enrichment, or infringement and unfair competition. Although there is no explicit provision in the TRIPS Agreement, the relevant provisions imply that trade secrets are a kind of property rights. Chinese scholars, experts and precedents have no great controversy on this issue, and trade secrets are protected as intellectual property rights.
Third, the characteristics of trade secrets:
When we study the protection of trade secrets, we must first know the characteristics of trade secrets. Different countries have different definitions of trade secrets. Generally speaking, they should possess novelty, practicality, value and confidentiality (management and confidentiality).
1, Confidentiality-Confidentiality is the most important and primary factor when confirming whether information belongs to trade secrets. Secretness can be understood as follows: first, objective secrets (which should not be well-known or easily known, and knowledge in the public domain cannot be trade secrets) exist objectively. Then there is a relative secret, not an absolute secret, and some people know it. In addition, the compilation and combination of public domain information cannot be the basis for denying its confidentiality. Finally, taking reasonable measures to keep information confidential is also an important factor to judge whether it constitutes a trade secret. The obligee must first make clear the scope and content of trade secrets, and also make clear the confidentiality obligation of the contract, and adopt confidentiality measures, software and hardware, etc. Note that the premise of trade secrets is confidentiality, which is different from patent law. Patents should disclose technology.
2, value-can bring economic benefits to the obligee is practicality, practicality is the basis of value, there is no value without practicality, including real value and potential value, positive and negative information can be, failure can be, design drawings, customer list, test report, etc. , market research data. The most essential embodiment of value is that everyone can get economic value, not other values, such as spiritual value, because they have mastered business secrets and preserved their competitive advantage. Information without commercial value does not constitute a trade secret.
3. Practicality-refers to the objective usefulness of trade secrets, which is first reflected in certainty-that is, it needs to be able to define the specific content of trade secrets and draw a clear line, and there is no way to protect trade secrets without uncertainty. Secondly, it is embodied in concreteness-it can be transformed into concrete implementation plans or forms, rather than abstract and vague ideas, principles and concepts.
4. Novelty-not known to the public, is the minimum element of trade secrets and the minimum requirement for novelty. Novelty is generally judged from the following aspects: a. Whether it is published in an open journal. It's not a novel when it's published. Can't be made public. B whether it is used in public or not, it has been widely used in public and is not novel. C information is known to the public in other ways, such as speeches, reports, TV stations, etc. In addition, information as a trade secret should be treated as a whole, and the novelty of the whole cannot be denied just because its components are not novel.
These are the characteristics of trade secrets. Both are indispensable.
Fourthly, the concept and constitutive requirements of trade secrets.
(1) Concept Different countries in the world have different definitions of trade secrets. We mainly look at the definition of trade secrets in China. China's anti-law is also designed around the novelty, practicality, value and management of trade secrets. Paragraph 2 of Article 10 of the Anti-Law stipulates that trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept confidential by the obligee. It should be noted that business secrets refer to business information and technical information, and the protection of business information reflects the extensiveness of the scope of protection of business secrets.
(II) Elements Conceptually, it can be seen that the element 1 is not known to the public and contains the requirement of novelty. Different from the known technology, the patent law also requires the technology to be novel, but it is not the same. Trade secrets have relatively low requirements for novelty. The patent requirements are higher. 2. It can bring economic benefits to the obligee and is practical. 3. After the obligee takes confidentiality measures. This condition emphasizes the confidentiality of the obligee, as long as corresponding confidentiality measures are taken.
The above simple understanding of the concept and elements of trade secrets is also the content that everyone needs to pay attention to.
Verb (the abbreviation of verb) infringes on business secrets (which is also the content that everyone needs to pay attention to)
Article 10 of China's Anti-monopoly Law stipulates that business operators shall not infringe on business secrets by the following means:
(1) Obtaining the business secrets of the obligee by theft, inducement, coercion or other improper means;
(2) disclosing, using or allowing others to use the business secrets of the obligee obtained by means of the preceding paragraph;
(3) disclosing, using or violating the agreement or the obligee's requirement to keep business secrets.
Allow others to use the trade secrets they have.
(4) If a third party knows or should know the illegal acts listed in the preceding paragraph, and obtains, uses or discloses other people's business secrets, it shall be regarded as infringement of business secrets.
These items can be summarized in the following forms: (1) The first item refers to the improper acquisition of trade secrets, without.
When the means are mainly theft, inducement, coercion, etc. (2) Improper disclosure and use of trade secrets refers to the act of spreading trade secrets to others, directly using or directly allowing others to use trade secrets. (three) legally held but in violation of obligations or
Necessary acts of unfair competition. Business secrets have been legally obtained but illegally used; (4) Third
The act of obtaining, using or disclosing in bad faith. Among them, the first two can be summarized as types of improper sources, while the third
Article 4 can be summarized as doing it despite knowing it is unfair.
Type.
The above are the types of infringement of trade secrets listed by China's anti-law, and I hope everyone will pay attention to them.
Let's look at the last question in this chapter, the legal responsibility for infringing trade secrets.
Legal responsibility of intransitive verbs infringing on business secrets
Mainly from three aspects: civil responsibility, administrative responsibility and criminal responsibility.
(a) civil liability mainly includes the liability for breach of contract, that is, when there is a contractual relationship, the confidentiality obligation of the other party is stipulated in the contractual obligations. If the other party fails to comply, it will be liable for breach of contract, and there must be a contract. Then there is tort liability, which is the same as general tort civil liability in the absence of agreed obligations. The main ways to take responsibility are to stop the infringement, apologize, eliminate the danger and compensate for the losses. (two) administrative responsibility mainly includes two means: ordering to stop and fine.
(3) Criminal responsibility, a relatively severe punishment. Now, countries are increasingly punishing the infringement of trade secrets. Many countries have stipulated the crime of infringing business secrets, and article 2 19 of our criminal law also stipulates that it is a relatively heavy punishment. Therefore, it must be an infringement of trade secrets that causes great losses, and it can only constitute a crime of infringement of trade secrets subjectively and intentionally.