Research On The Follow-up Protection Of Design Patent By Anti-Unfair Competition Law

The object of protection of the patent system is invention creation,and design is one of the objects of patent law.Design is not the same as inventions,since it emphasis more on the decorative effect of the product.When recognizable,it can help consumers distinguish between different commodities and identify sources of goods.After a long period of use,the appearance of this product is given not only the meaning of patent law,but also the credibility of the market which is accumulated by the right holders.It is the result of the hard work of the patentee,so the unauthorized use by others is to steal the fruits of labor justification.The anti-unfair competition law is designed to stop this unfair competition and maintain fair competition in the market order.The further problem arises that the design patent protected by the patent law during the protection period will enter the public domain in terms of the patent law and be shared by the public after the protection period.If it continues to be protected by the Anti-unfair competition law,will it be equivalent to extending the protection period of patents indefinitely?This article mainly studies the follow-up protection of exterior design from the perspective of anti-unfair competition law,starting from the necessity of the protection of design,to discussing the feasibility of using anti-unfair competition in the protection of design and the relevant provisions of the Anti-Unfair Competition Law of foreign countries.It also discusses parts of the design product after the expiration of the protection can be protected against unfair competition under certain conditions.The full text is divided into five parts:The first part discusses the necessity of the follow-up protection of designs in anti-unfair competition law.Designs are innovative and protected by patent law.At the same time,the features that can play an identifying role enable the design products to be subject to the Trademark Law and the Unfair Competition Law.It discusses in detail that even after the expiration date of the patent law,the right holders of the design,consumers and the normal order of market competition will suffer.The second part analyzes the feasibility of the follow-up protection of the design products based on the basic principles of anti-unfair competition law.Detailed analysis of the appearance design by the unfair competition law to provide follow-up protection is in line with the nature,characteristics and formulation of the anti-unfair competition law.Theanalysis of the unauthorized use of the appearance of others' products is in accordance with the nature,characteristics and principles of the Anti-Unfair Competition Law.In the third part,the author compares and analyzes the relevant provisions in each country on the protection of anti-unfair competition law in each country.These provisions,including those that are specified in the Trademark Law and Anti-Unfair Competition Law of Germany and Japan and those of common law which mergers Trademark Law protection and Anti-Unfair Competition Law protection in common law,have pointed that the appearance of design in market circulation should be protected by the anti-unfair competition law.They have also pointed that the application of anti-unfair competition law outside the territory can adjust the interests of all parties who are harmed.This part finally sums up the protection measures suitable for our country based on the actual situations.The fourth part analyzes the related understanding of Article 6 of the Anti-Unfair Competition Law and the conditions that should be possessed by the design products for subsequent protection.Only those products that are identifiable,have a certain influence in the market,that are known to the public and that can differentiate product source can be protected.Products with a limited feature of functionality should be excluded.The fifth part puts forward three personal suggestions based on the analysis of this article.The first is to make clear that the design of products as a clear identification should be brought into the protection of anti-unfair competition law as a business logo.The second is to highlight the salient elements of the design products as the basic requirements in anti-unfair competition law protection.The third is to point out the non-functional limitation requirements.