Product packaging is an important part of the product's overall image (getup). Outer packaging of goods occupies a prominent position in the image of goods because it is closely connected with the goods and meets consumers directly. Its image often represents the overall image of the goods. This article discusses the protection of the outer packaging of the goods by the Trademark Law, the protection of the outer packaging of the goods against unfair competition law, and the conflict and coordination of the protection against unfair competition law and intellectual property law.
Product packaging is an important part of the product's overall image (getup). The narrow sense of commodity image refers to the outer packaging of goods; the broad product image includes commodity design, packaging, advertising, price lists, business letters, planning books, invoices, and other things that have the role of identifying commodity providers (such as service personnel's uniforms, There are distinctive transportation tools and business buildings, etc.) Outer packaging of goods occupies a prominent position in the image of goods because it is closely connected with the goods and meets consumers directly. Its image often represents the overall image of the goods. The outer packaging of goods is mainly composed of packaging materials and labels; the color, shape and material of the packaging materials, as well as the trademarks, commodity names, product decorations and explanatory texts on the labels are the components of the outer packaging of the goods. Commodity packaging not only has the practical function of containing and wrapping commodities, but also recognizes the origin of commodities, condenses business reputation, and plays an increasingly prominent role in advertising.
Article 5 of the Anti-Unfair Competition Law of the People's Republic of China stipulates that unauthorized use of names, packaging, and decorations unique to well-known goods, or the use of names, packaging, and decorations similar to those of well-known goods, causes confusion with well-known goods of others, and causes buyers to misunderstand This is a well-known commodity and it is unfair competition. Anti-unfair competition law is an important system for our country to protect the outer packaging of goods. However, since China's anti-unfair competition law only has a history of less than three years (implemented in December 1993), its system still needs to accumulate experience in practice to further develop and perfect it. Some countries in the world have established an earlier legal system for the protection of the packaging of goods. The pros and cons of the country deserve our country's careful analysis and research in order to draw lessons from it.
Trademark Law's Protection of Outer Packaging of Goods The outer packaging of goods may be registered as a trademark in some countries, but it is subject to strict restrictions. For example, according to the U.S. Trademark Law, only when the decoration and other decorations of goods and components are used to identify the source of goods, registration can be given; otherwise, the applicant must prove that the outer package (constitution, shape, color) has acquired the original meaning. The "second meaning" is enough to link the outer package with the source of the product. At present, commodity trademarks that can be used as objects of trademark rights in accordance with the laws of our country should be text, graphics, or combinations thereof, and have distinctive features that are easy to identify. This is stipulated in Article 7 of the Trademark Law of China. According to the usual explanation, trademarks that can be registered in our country must be flat, and “three-dimensional trademarks†cannot be registered trademarks, which precludes the possibility of obtaining trademark registration for three-dimensional packaging. In China, although the interior design often occupies a larger area and more prominent position than the logo and graphics of the trademark, the packaging of many products cannot be registered as a trademark for most products. The exception is that a batch of famous wine product manufacturers approved by the administrative department for industry and commerce in China after 1986 may register their bottles (labels) together with the original trademark. For example, in the case of Maotai, it is not only the "Golden Wheel" or "Flying" trademark that is protected by trademark protection, but also includes the decorative design of the "Maotai Liquor" full of white Chinese characters, which is our trademark protection. A supplementary measure that belongs to the special case of outer packaging protection.
Even if the outer packaging is difficult to get registered as a trademark, the extension of trademark protection also serves to protect the outer packaging. In 1988, the European Community Commission's directive to harmonize the trademark law of member states proposed the concept of “possibility of contact†(referring to the fact that the trademark is linked to the entire outer package and may cause misunderstanding in the public).
The trademark legal system not only protects the interests of trademark rights holders but also focuses on protecting the interests of consumers. Trademarks consist of text, graphics, symbols, etc., and are integrated into the pattern, color, and composition of the outer packaging. What usually impresses consumers is the overall image of the package. It is difficult for consumers to check the similarities and differences of all the components of a trademark one by one, as long as the trademark is used on the packaging (position, size, color, and other ingredients). A relationship that gives a similar impression on the whole can lead to misunderstandings; because there is no specific reference (brands lose their recognition when compared with the entire outer package), the trademark rights are infringed. The concept of “possibility of contact†proposed by the European Community’s 1988 Trademark Directive actually extends the scope of trademark rights. From the overall consideration of the packaging, there is the possibility of misidentification of the trademark, and the “extension†of trademark rights indirectly protects the packaging from being copied.
Article 41 of the Implementation Regulations of the Trademark Law of the State of the People's Republic of China in 1993 stipulates that texts and graphics identical or similar to those registered trademarks of others should be used as commodity names or decoration of goods on the same or similar goods, and this may be enough to cause misidentification and infringe the registered trademark. Exclusive rights. This provision noticed that there was a close connection between trademark protection and trademark name and decoration on outer packaging, but the scope was too narrow, and it was still from the perspective of the trademark itself, rather than judging whether there was any trademark infringement from the perspective of packaging. The concept of "possibility of contact" in the European Trademark Law deserves our further study to determine whether there is a need to expand trademark rights in China.
(to be continued)
Product packaging is an important part of the product's overall image (getup). The narrow sense of commodity image refers to the outer packaging of goods; the broad product image includes commodity design, packaging, advertising, price lists, business letters, planning books, invoices, and other things that have the role of identifying commodity providers (such as service personnel's uniforms, There are distinctive transportation tools and business buildings, etc.) Outer packaging of goods occupies a prominent position in the image of goods because it is closely connected with the goods and meets consumers directly. Its image often represents the overall image of the goods. The outer packaging of goods is mainly composed of packaging materials and labels; the color, shape and material of the packaging materials, as well as the trademarks, commodity names, product decorations and explanatory texts on the labels are the components of the outer packaging of the goods. Commodity packaging not only has the practical function of containing and wrapping commodities, but also recognizes the origin of commodities, condenses business reputation, and plays an increasingly prominent role in advertising.
Article 5 of the Anti-Unfair Competition Law of the People's Republic of China stipulates that unauthorized use of names, packaging, and decorations unique to well-known goods, or the use of names, packaging, and decorations similar to those of well-known goods, causes confusion with well-known goods of others, and causes buyers to misunderstand This is a well-known commodity and it is unfair competition. Anti-unfair competition law is an important system for our country to protect the outer packaging of goods. However, since China's anti-unfair competition law only has a history of less than three years (implemented in December 1993), its system still needs to accumulate experience in practice to further develop and perfect it. Some countries in the world have established an earlier legal system for the protection of the packaging of goods. The pros and cons of the country deserve our country's careful analysis and research in order to draw lessons from it.
Trademark Law's Protection of Outer Packaging of Goods The outer packaging of goods may be registered as a trademark in some countries, but it is subject to strict restrictions. For example, according to the U.S. Trademark Law, only when the decoration and other decorations of goods and components are used to identify the source of goods, registration can be given; otherwise, the applicant must prove that the outer package (constitution, shape, color) has acquired the original meaning. The "second meaning" is enough to link the outer package with the source of the product. At present, commodity trademarks that can be used as objects of trademark rights in accordance with the laws of our country should be text, graphics, or combinations thereof, and have distinctive features that are easy to identify. This is stipulated in Article 7 of the Trademark Law of China. According to the usual explanation, trademarks that can be registered in our country must be flat, and “three-dimensional trademarks†cannot be registered trademarks, which precludes the possibility of obtaining trademark registration for three-dimensional packaging. In China, although the interior design often occupies a larger area and more prominent position than the logo and graphics of the trademark, the packaging of many products cannot be registered as a trademark for most products. The exception is that a batch of famous wine product manufacturers approved by the administrative department for industry and commerce in China after 1986 may register their bottles (labels) together with the original trademark. For example, in the case of Maotai, it is not only the "Golden Wheel" or "Flying" trademark that is protected by trademark protection, but also includes the decorative design of the "Maotai Liquor" full of white Chinese characters, which is our trademark protection. A supplementary measure that belongs to the special case of outer packaging protection.
Even if the outer packaging is difficult to get registered as a trademark, the extension of trademark protection also serves to protect the outer packaging. In 1988, the European Community Commission's directive to harmonize the trademark law of member states proposed the concept of “possibility of contact†(referring to the fact that the trademark is linked to the entire outer package and may cause misunderstanding in the public).
The trademark legal system not only protects the interests of trademark rights holders but also focuses on protecting the interests of consumers. Trademarks consist of text, graphics, symbols, etc., and are integrated into the pattern, color, and composition of the outer packaging. What usually impresses consumers is the overall image of the package. It is difficult for consumers to check the similarities and differences of all the components of a trademark one by one, as long as the trademark is used on the packaging (position, size, color, and other ingredients). A relationship that gives a similar impression on the whole can lead to misunderstandings; because there is no specific reference (brands lose their recognition when compared with the entire outer package), the trademark rights are infringed. The concept of “possibility of contact†proposed by the European Community’s 1988 Trademark Directive actually extends the scope of trademark rights. From the overall consideration of the packaging, there is the possibility of misidentification of the trademark, and the “extension†of trademark rights indirectly protects the packaging from being copied.
Article 41 of the Implementation Regulations of the Trademark Law of the State of the People's Republic of China in 1993 stipulates that texts and graphics identical or similar to those registered trademarks of others should be used as commodity names or decoration of goods on the same or similar goods, and this may be enough to cause misidentification and infringe the registered trademark. Exclusive rights. This provision noticed that there was a close connection between trademark protection and trademark name and decoration on outer packaging, but the scope was too narrow, and it was still from the perspective of the trademark itself, rather than judging whether there was any trademark infringement from the perspective of packaging. The concept of "possibility of contact" in the European Trademark Law deserves our further study to determine whether there is a need to expand trademark rights in China.
(to be continued)