The Protection Of Commodity Packaging Or Decoration By The Anti-Unfair Competition Law

To prevent market confusion and maintain the competition order,as an unregistered business mark,“product packaging and decoration with certain influence” is protected by the Anti-Unfair Competition Law.Regarding the judgment of whether the product packaging and decoration can be protected by the Anti-Unfair Competition Law,there are the following two difficulties,which have caused controversy in academic circles and judicial practice.The first one is the identification of “having certain influence”.The second one is the judgement of protectable interests.In this thesis,the objects of analysis are the judgments of the first instance,the second instance and retrial of the case of “THE SPECIAL ARMS”.It adopts the research method of case and literature,supplemented by historical and comparative research,and legal interpretation,to discuss the protection conditions of product packaging and decoration by the Anti-Unfair Competition Law.It is necessary to deeply discuss the application of law in respect of the judgments of the first instance,the second instance and retrial of case of “THE SPECIAL ARMS”.First of all,with regard to the identification of “having certain influence”: its restricted object is packaging and decoration rather than commodities,and the innate character is competitive legal interest;its subjective elements are identification and popularity,and the objective elements are priority,stability,industry characteristics,and non-functionality.It can be interpreted consistent with the interpretation of “having certain influence” in the Trademark Law,and its requirements are far lower than “well-known”.Secondly,during the judgment of the protectable interests of packaging and decoration,we should consider the legality of packaging and decoration as well as integrated measurement of competition interests.It shall be clarified that legal interests of packaging and decoration have the nature of civil interests,and are different from the absolute rights of registered trademarks.Furthermore,the legality of the packaging and decoration is a precondition for protection.When judging the legality,the subjective cognition of the public should be considered.As to the packaging and decoration with distinctive parts,take the overall packaging and decoration as the object of the legality judgement.In the evaluation of counterfeiting and confusion of packaging and decoration,it is necessary to return to the conduct regulation attribute of the Anti-Unfair Competition Law,to take competitive conducts as a starting point,and to take into consideration the effects of competitive activities on the three kinds of interests under the Law.In addition,even if the packaging decoration is illegal,the related counterfeiting and confusion should still be negatively evaluated.