| The recognition of well-known products, the ownership of the distinctive container and packaging of the well-known products, the same and similar use of distinctive container and packaging of the well-known products as well as the likelihood of confusion are controversial issues in the legal protection of the distinctive container and packaging of the product being well-known. Judicial practice encounters difficult and complicated cases of dispute over above-mentioned controversial issues. Theoretical circles discuss a lot on the above-mentioned controversial issues and share different perspective. This paper attempts to analyze above-mentioned controversial issues, to study and solve the problems and finally put forward legislative proposals. The text of this paper is made up of four chapters. The first chapter is the theoretical analysis of the recognition of the well-known product in China. The first section of this chapter discusses the method of identifying well-known product, firstly by comparing the existing laws and regulations of the legal meaning of the well-known product. Identification of well-known product must be placed in the market environment. The standard used in identifying well-known product should not be too high. Well-known products include well-known services. Well-known products must be well known in China. The first section of the second part is the discussion of the standard on identifying well-known product. First, from the perspective of semantic of law, the logic, the intention of anti unfair competition law legislation and the judicial practice, the paper summarizes and analyses the theoretical opinions on inverse method of identifying well-known products. This paper then expresses writer’s opinion on inverse method recognizing well-known products. Secondly, the paper discusses the specific standards of the recognition of well-known products. Combined with case analysis, this paper discusses the principle of the recognition of the well-known commodity in judicial practice. The second part of this chapter emphasizes that the legal protection of distinctive container and packaging of product requires the product to be well-known. This part also discusses whether the protection of well-known products is actually the protection of well-known and distinctive business identifier. The second chapter is about the identification of the legal nature of distinctive container and packaging as well as question of ownership of the distinctive container and packaging of well-known products, so as to solve the problem met in the cases of judicial disputes. The first section of this chapter defines distinctive packaging and decoration and then come to the following conclusion: the distinctive container and packaging of well-known products must maintain its independent nature legally. When a new type of business identifier appears in the market, the distinctive container and packaging of well-known products is able to provide protection. The second section of this chapter discusses the ownership of distinctive container and packaging of well-known products. First of all, it is concluded that the academic circles has different views on the legal nature of container and packaging of well-known products. By defining the rights and legal interests, and comparing the characteristics of the distinctive container and packaging of well-known products, it is concluded that the said container and packaging of well-known products is legal interest, but not rights. Finally, on the basis of this conclusion, this paper provides a solution to the problem in the judicial practice. In the third chapter, this paper discusses the relationship between the same and similar use and the likelihood of confusion. The first section discusses the possibility of confusion is the standard to determine the distinctive container and packaging of well-known products. The second section discusses the same and similar use as well as kind of likelihood of confusion. Chapter four of this article is based on the previous three chapters of this article and provides legislative advice on protection of distinctive container and packaging of well-known products in China. The legislative suggestion includes using the description of well-known and distinctive container and packaging instead of well-known products, protecting the independence and openness of the legal concept of distinctive container and packaging so as to provide a solution to potential new kind of packaging in the market, solving problem in judicial practice by determining the infringer and the infringed in the passing off, write likelihood of confusion into anti unfair competition law and expanding type of confusion in the anti unfair competition law. |
