Anti-unfair competition law to protect the outer packaging of goods Most of the outer packaging of goods cannot be protected by trademark law. Therefore, the protection of unfair competition laws is particularly important. Although some countries stipulate the content of the protection of the outer packaging of goods in the trademark law, this part of the content actually belongs to the nature of the “Anti-Unfair Competition Law.†Article 24 of the Trademark Law, which was amended by Germany in 1986, is about legal liability for infringement of trademark rights. Article 25 is about the legal liability for infringement of the general merchandise image; the latter belongs to the category of unfair competition law. The German Trademark Law has been greatly modified based on the Community Trade Marks Directive of 1988 and the Trademark Rules of the Alliance Commission, which entered into force in 1994. The new Trademark Law entered into force in 1995. The new German trademark law contains all protections related to registered trademarks and unregistered trademarks and other marks used in commerce. Prior to this, the series of marks was jointly adjusted by the original trademark law, unfair competition law, and civil law. The new trademark law protects the three-dimensional packaging, the color of the packaging, and its combination. One of the major changes was the cancellation of the 1986 Trademark Law requiring that protected outer packaging be recognized as "well-known" within the industry, extending the scope of protection for outer packaging.
The sanctions "passing off" is a long-established system in the United Kingdom. Because counterfeit lawsuits are expensive and full of uncertainty, registered trademarks have rarely been protected through sanctions and counterfeiting, but unregisterable packaging still requires the use of counterfeit lawsuits. “Counterfeit†refers to the fact that an actor misinformed the public when he sold a product to believe that the product came from someone or was related to the business of a person. To make a counterfeit suit established, the actor must also prove that the actor was intentionally fraudulent and thus caused damage. Now, the elements of counterfeiting have been reduced to three, namely, goodwill, misleading and damage. If it causes consumers to misidentify, it is regarded as prima facie evidence of misleading or damaging. In counterfeiting lawsuits, it is important to prove the fraud intention of the perpetrator. In fact, “If the plaintiff can prove that the defendant uses the packaging and the label is intended to enable the retailer to deceive the consumer, he will be able to win the case.†Since the sanctions and counterfeiting system has a lot of restrictions, unless the defendant is used to protect well-known products, it is difficult for the victim to win. In Britain, there is a high demand for replacing the sanctions and counterfeiting system with a new anti-unfair competition system. Substituting counterfeit "misappropriation" does not prove the strict requirements of the subjective intentions of the actors and will make the protection of outer packaging relatively loose.
In Spain's anti-unfair competition law in 1991, the concept of "no mistake imitation" emerged. There are three compositional conditions for imitation: First, imitation is divided into four types, complete imitation, complete imitation with negligible changes, imitation with important changes near perfection, and re-creation imitation (the first three Imitation constitutes unfair competition. Second, by imitating the goodwill of others or striving for results, or making consumers have the impression that the two are related; Third, imitation is not inevitable. Some of the ingredients or arrangements on the packaging or merchandise labels are based on legal regulations, industry habits, or market competition laws. For example, the law requires that product labels must have product content, shelf life, and the like printed on the label; in order to attract consumers, the product label is generally in the middle of the label, eye-catching position, and so on. Only the same or similar in these aspects can not be regarded as "nothing wrong imitation." However, if there is a lot of room for performance and choice, it is still trying to imitate and plagiarize other people's packaging design, it is inevitable that "no mistake imitation" is suspected.
From the perspective of Germany, the United Kingdom and Spain protecting the packaging of goods, the development trend is that the scope of protection is expanding and the conditions for protection are becoming more and more relaxed. The new German Trademark Law removes restrictions that only protect the image of well-known goods within the industry; Spain’s “imitation†is not limited to the protection of well-known goods; just as with the UK’s sanctions and counterfeiting system, the scope of protection extends to goodwill for business operators. protection of. Goodwill of business is a social assessment of production and business activities. It mainly refers to the public's affirmation and recognition of products or operations. The range of goodwill includes the scope of “reputationâ€. Even if the goods are not sufficiently “well-knownâ€, there may be goodwill. In order to damage the goodwill as an element of counterfeit packaging responsibility, the scope of protection is obviously expanded. Neither Germany nor Spain used the intentional or negligent conduct of the actor as a requirement for the establishment of counterfeit packaging responsibility. Britain also showed signs of loosening the subjective requirements. Spain's "imitation" is not only applicable to situations in which consumers misunderstand the origin of products, but also applies to situations in which consumers make mistaken associations between products or manufacturers. Judging from the current development trend, “consumer misrecognition or misinformation†has become the most important element, which is decisive for the establishment of counterfeit packaging responsibility.
Comparing the relevant provisions of Article 5 of the Anti-Unfair Competition Law of our country, we can see that: 1 The protection of external packaging is limited to well-known commodities; 2 Consumers misrecognize the source of goods to constitute unfair competition; 3 Not subjective of the perpetrator Intent is the requirement for the establishment of responsibility. From the third point of view, our country's regulations are consistent with the international development trend; the first two points are the conclusions drawn from the article text. As such, the scope of protection for China's outer packaging is quite small. However, there are many variations in practice. According to the interpretation of the administrative department for industry and commerce, any goods with counterfeit packaging can be identified as “well-known goodsâ€, that is, where goodwill is damaged, it is protected; as for “wrong association†The situation can also be included in the legal adjustment scope through the expanded interpretation of Article 5. It can be seen that the provisions of China's anti-unfair competition law still conform to international development trends and adapt to practical needs.
(to be continued)
The sanctions "passing off" is a long-established system in the United Kingdom. Because counterfeit lawsuits are expensive and full of uncertainty, registered trademarks have rarely been protected through sanctions and counterfeiting, but unregisterable packaging still requires the use of counterfeit lawsuits. “Counterfeit†refers to the fact that an actor misinformed the public when he sold a product to believe that the product came from someone or was related to the business of a person. To make a counterfeit suit established, the actor must also prove that the actor was intentionally fraudulent and thus caused damage. Now, the elements of counterfeiting have been reduced to three, namely, goodwill, misleading and damage. If it causes consumers to misidentify, it is regarded as prima facie evidence of misleading or damaging. In counterfeiting lawsuits, it is important to prove the fraud intention of the perpetrator. In fact, “If the plaintiff can prove that the defendant uses the packaging and the label is intended to enable the retailer to deceive the consumer, he will be able to win the case.†Since the sanctions and counterfeiting system has a lot of restrictions, unless the defendant is used to protect well-known products, it is difficult for the victim to win. In Britain, there is a high demand for replacing the sanctions and counterfeiting system with a new anti-unfair competition system. Substituting counterfeit "misappropriation" does not prove the strict requirements of the subjective intentions of the actors and will make the protection of outer packaging relatively loose.
In Spain's anti-unfair competition law in 1991, the concept of "no mistake imitation" emerged. There are three compositional conditions for imitation: First, imitation is divided into four types, complete imitation, complete imitation with negligible changes, imitation with important changes near perfection, and re-creation imitation (the first three Imitation constitutes unfair competition. Second, by imitating the goodwill of others or striving for results, or making consumers have the impression that the two are related; Third, imitation is not inevitable. Some of the ingredients or arrangements on the packaging or merchandise labels are based on legal regulations, industry habits, or market competition laws. For example, the law requires that product labels must have product content, shelf life, and the like printed on the label; in order to attract consumers, the product label is generally in the middle of the label, eye-catching position, and so on. Only the same or similar in these aspects can not be regarded as "nothing wrong imitation." However, if there is a lot of room for performance and choice, it is still trying to imitate and plagiarize other people's packaging design, it is inevitable that "no mistake imitation" is suspected.
From the perspective of Germany, the United Kingdom and Spain protecting the packaging of goods, the development trend is that the scope of protection is expanding and the conditions for protection are becoming more and more relaxed. The new German Trademark Law removes restrictions that only protect the image of well-known goods within the industry; Spain’s “imitation†is not limited to the protection of well-known goods; just as with the UK’s sanctions and counterfeiting system, the scope of protection extends to goodwill for business operators. protection of. Goodwill of business is a social assessment of production and business activities. It mainly refers to the public's affirmation and recognition of products or operations. The range of goodwill includes the scope of “reputationâ€. Even if the goods are not sufficiently “well-knownâ€, there may be goodwill. In order to damage the goodwill as an element of counterfeit packaging responsibility, the scope of protection is obviously expanded. Neither Germany nor Spain used the intentional or negligent conduct of the actor as a requirement for the establishment of counterfeit packaging responsibility. Britain also showed signs of loosening the subjective requirements. Spain's "imitation" is not only applicable to situations in which consumers misunderstand the origin of products, but also applies to situations in which consumers make mistaken associations between products or manufacturers. Judging from the current development trend, “consumer misrecognition or misinformation†has become the most important element, which is decisive for the establishment of counterfeit packaging responsibility.
Comparing the relevant provisions of Article 5 of the Anti-Unfair Competition Law of our country, we can see that: 1 The protection of external packaging is limited to well-known commodities; 2 Consumers misrecognize the source of goods to constitute unfair competition; 3 Not subjective of the perpetrator Intent is the requirement for the establishment of responsibility. From the third point of view, our country's regulations are consistent with the international development trend; the first two points are the conclusions drawn from the article text. As such, the scope of protection for China's outer packaging is quite small. However, there are many variations in practice. According to the interpretation of the administrative department for industry and commerce, any goods with counterfeit packaging can be identified as “well-known goodsâ€, that is, where goodwill is damaged, it is protected; as for “wrong association†The situation can also be included in the legal adjustment scope through the expanded interpretation of Article 5. It can be seen that the provisions of China's anti-unfair competition law still conform to international development trends and adapt to practical needs.
(to be continued)