On Legal Protection Of Business Reputation

The intellectual property system are combining results of economy, law, science and technology .In fact, the system resolves ownership question of " knowledge "which is regarded as a resource, it's a kind of mechanism which has a function of encouragement and regulation. We are in the brand-new era of knowledge economy, science and technology is regarded as the most important productivity in this age, the developing force of knowledge economy lies in innovative activities about science and technology, but science and technology innovation can not get away from the innovation of property right regulation. Because the intellectual property is an outcome of innovation and changes in the private right law system, it's also the basic legal system of protecting innovative activities about science and technology. There has been about 4 hundred years since the intellectual property law rose, it went through different periods—from industrial revolution to information revolution, rose in the scientific and technical revolution time, also changed in this time, the history of the intellectual property law is a course of interaction and mutual promotion between innovation in law and innovation about science and technology. Following the scientific and technical revolution, the intellectual property law was produced and developed, in my mind: the history of innovation in the intellectual property system is also a history of innovation about science and technology. Cyclical developing process of science and technology endowed technical revolution with characteristics of spiral and periodic development. Since British industrial revolution, there have taken place four times of technical revolution roughly, they are the developing foundation of the intellectual property law; on the other hand, the development in intellectual property field promoted technical revolution too. The fourth technical revolution took place in the 80's of the 20th century; its innovative signs are the biological revolution about human gene and the technical revolution of information, which are represented by computer and network. The fourth technical revolution has brought a global tide of" information revolution" and" intellectual revolution".With the process of the fourth technical revolution, the contradictionbetween the products property of knowledge and the property structure of traditional materialization is conspicuous day by day. Since Rome law, the understanding of the main composition of the property are limited with corporeal property, the material property system have established for a long time. There is no doubt that corporeal property includes movable property and immovable property, things incorporeal are also a property right which regards tangible thing as the target, traditional things and real right systems are the material property structure. With the development of commodity economy and progress of science and technology, an immaterial and abstract type of property has emerged in the composition of the social property; a new understanding about the concepts of the property and material has formed. In the capitalist market, only two kinds of property have the incorporeal characteristic: First, the abstraction of tangible material, namely bond, stock, insurance policy, etc.; Second, spirit "fixing on" materials, namely knowledge, technology, information, etc. "although this kind of intellectual product is a thing existing with inherent spirit, it can obtain external 'fixing on' through a certain form of 'expressing', namely the intellectual product can have 'directness' and 'external carrier'", said Hegel. In the type of the social products of labor, the knowledge products are different from physical product, although it has inherent value and use value, there is no external tangibility, we should consider the balance of individual interests and social interests while protecting it, [the famous" 3P" principle about intellectual property protection: 1, the Promotion of learning; 2, the Preservation of the public domain 3, the Protection of the author]. So it's a deep system innovation and improvement to set up the legal system of the intellectual property or intellectual property system in property law since the Rome law. But we should see, immaterial revolution of property promotes the appearance of the intellectual property, and it's not the final result. So we should pay more concerning to immaterial property.Nowadays, importance of the goodwill is self-evident. The goodwill of the commercial subject is different from reputation of the civil subject, especially about economic benefits, it's difficult to use right of personality in traditional civil law to protect goodwill of the commercial subject now, and the judges are facing the same embarrassment. Some scholars propose introducing the concept of thegoodwill, protecting reputation of the commercial subject according to the goodwill, in order to distinguish with the general reputation. This thesis plans to do some theoretical discussions about protection of the goodwill, at first, we should be certain about legal nature of the goodwill and goodwill right, it's the key to offer it proper legal protection. For the arrangement of the thesis's structure, the thesis includes 6 parts as following:The First part, as the guide of the theory, analyzed the question in practice and puzzlement in theory, pointed out the importance of carrying on legal protection about goodwill.The second part proceeded with concept of the goodwill, analyzed legal nature, forms, the display form (carrier) and characteristic of the goodwill, compared goodwill with trade mark and trade name, and put forward a view that goodwill is a kind of information system with proprietary attribute, which belongs to the protection target of the intellectual property.The third part analyzed the concept, legal characteristic and legal attribute of goodwill right, supposed that defining legal attribute of goodwill right as the intellectual property right, not only accorded with the common method in the world, complied with the development trend of goodwill protection, but also conformed with the demand for economic development of the market, helped to protect the legitimate rights and interests of the commercial subject.On the foundation of the third part, the fourth part demonstrated the value foundation of the legal protection of goodwill, namely necessity and rationality of confirming goodwill right, and investigated generally legal protecting mode of goodwill, on this basis, analyzed the compositions of liability in goodwill torts and the form of expression of goodwill torts.The fifth part pointed out current situation and legislative defect about goodwill in our country, put forward some suggestions of protecting the legal system of goodwill.The sixth part is a conclusion part, emphasized the writing purpose of this thesis, namely strengthened the public's understanding of goodwill, called upon relevant organs to confirm the intellectual property right nature of goodwill right, strengthen legal protection to goodwill.