On The Understanding And Application Of "Have Certain Impact" In Article 6 Of "Anti-unfair Competition Law"

The National People's Congress voted to pass “the Anti-Unfair Competition Law(Revised Draft)” on November 4,2017,which has comes into effect on January 1,2018.One of the highlights of this revision is that Article 6 of the new Anti-Unfair Competition Law(hereinafter referred to as “Anti-Unfair Competition Law”)amended Article 5 of the old Anti-Unfair Competition Law.The first chapter clarifies the basic content of Article 6 of the Anti-Unfair Competition Law in the way of comparing the fifth article of the old Anti-Unfair Competition Law with Article 6 of the Anti-Unfair Competition Law,and puts forward the problems studied in this thesis in according with the academia'viewpoints.In terms of the content,the Article 6 of the Anti-Unfair Competition Law protects business marks,and prohibits the behavior of confusion and it's protection conditions is that business marks have certain impact.However,the academia has controversy on the popularity requirements of “have certain impact” of Article 6 of the Anti-Unfair Competition Law.In the final analysis,its substantive problem is that the basic meaning of “have certain impact” is unknown.Furthermore,regarding the determination of “have certain impact”,the State's legislation and judicial practice have not detailed provisions,that is,there is a lack of specific identification rules.The second chapter mainly discusses the basic meaning of “have certain impact”of Article 6 of the Anti-Unfair Competition Law.The minimum of “have certain influence” is that business marks have distinguish function,and the maximum of popularity is lower than “well-known”.The purpose of Article 6 of the Anti-Unfair Competition Law is to regulate the behavior of confusion,in the way of prohibitingthe behavior of damaging business marks' distinguish function to protect the property interests of goodwill.In addition,the protection object of Article 6 of the Anti-Unfair Competition Law is business marks,and the legitimacy of protecting business marks is that they have distinguish function and can bring property benefits to the right holders.So,distinguish function is the core of Article 6 of the Anti-Unfair Competition Law,which is the minimum of “have certain influence” and comes from the behavior of “use”.In terms of popularity,in view of the protection of commercial marks,the anti-unfair competition law only serves the role of supplementary protection.Therefore,the restriction of “same or similar goods” should be imposed on Article 6 of the Anti-Unfair Competition Law to achieve Coordination with trademark law.Moreover,in the case of an unregistered trademark protection system,a well-known unregistered trademark owner can only stop others from registering or using the trademark on the same or similar goods.This protection status determines the boundary of the interests of Article 6 of the Anti-Unfair Competition Law shall be limited to “same or similar goods”.Since the interests of Article 6 of the Anti-Unfair Competition Law are limited to “same or similar goods”,the maximum of “have certain impact” in popularity is lower than “well-known”,otherwise it will be coincident with Article 13,paragraph 2 of the Trademark Law.In summary,the minimum “have certain impact” is distinguish function,and the maximum of popularity is lower than “well-known”,which meets needs to protect other business marks and does not cause any inconsistency with the registered trademark protection system.The third chapter analyzes and discusses the specific factors to identify “have certain impact” in two aspects: distinguish function and popularity of business marks,after clarifying the basic meaning of “have certain impact” Article 6 of the Anti-Unfair Competition Law.First,although the fact that business marks are distinctive doesn't mean they can distinguish the source of goods and so on,the more distinctive business marks are,the easier they obtain distinguish function,which means that operators can spend relatively little time or energy on “use”.In terms of“use”,we can judge whether business marks have distinguish function from two aspects: the time and the manner of “use”.However,whether business marks have distinguish function should be judged based on the actual cognitive situation of the consumers.Second,popularity of business marks can be considered in terms of product similarity,geographical scope,advertising,etc.Specifically,the more similarthe rights holder and the infringer's goods are,the popularity of business marks are relatively higher.And the similarity of product can be measured from functions,sales channels,consumption targets,and the possibility of the operator operating across the product category.Similarly,the farther the “distance” between the right holder and the infringer's territory for selling goods,the popularity of business marks are relatively higher.In terms of advertising,it is necessary to determine the impacted scope of online advertising in conjunction with product's characteristics.