How the Amendment of Anti-Unfair Competition Law May Affect Protection for the Appearance of Commodities

Jianming FENG | Fer 1, 2018

Case Review:

Order of the President of the People's Republic of China No. 77 was issued on November 4, 2017. The Anti-Unfair Competition Law of the People's Republic of China, as amended and adopted at the 30th Meeting of the Standing Committee of the Twelfth National People's Congress of the People's Republic of China on November 4, 2017, was hereby issued and came into force on January 1, 2018.

This article will analyse the main amendment of Anti-Unfair Competition Law based on a practical case.
In the event of any disputes involving intellectual property at an industry trade show, Company A had a search company perform a patent novelty search for its products, of which the results did not show any possible conflict of interests with the products of other enterprises. However, on the first date of the show, Company A was forced to remove its products from the trade show, following a complaint that their products were in violation of the Anti-Unfair Competition Law and an order from the staff of the trade show to pull all products off their shelves.

Legal Basis:

Article 6 of the Anti-Unfair Competition Law

A business operator shall not commit the following acts of confusion to mislead a person into believing that a commodity is from another person or has a particular connection with another person:

(1) Using without permission a label identical or similar to the product name, packaging or decoration et cetera, among others, of another person's commodity with certain influence.

(2) Using without permission another person's name with certain influence, such as the name (including abbreviations and trade names) of an enterprise, the name (including abbreviations) of a social organization, or the name (including pseudonyms, stage names and name translations) of an individual.

(3) Using without permission the principal part of a domain name, the name of a website, or a web page with certain influence, among others, of another person.

(4) Other acts of confusion sufficient to mislead a person into believing that a commodity is from another person or has a particular connection with another person.

Our Comments:

In the new amended Anti-Unfair Competition Law, some improvements have been made for the problems appeared in judicial practice that the appearance of a commodity is difficult to be subsumed under “the name, packaging or decoration”. Article 6 has explicitly put forward the concept of “acts of confusion” and has been revised to a clause purely for prohibition of acts of imitation and confusion. The words “et cetera” are added after “product name, packaging or decoration” in order to include more unmentioned conditions.

In this case, the complainant did not apply for patent protection for the design of its commodity, but it does not mean that others can use the design without permission, as the commodity which has obtained awareness through repeated use shall be protected by the Anti-Unfair Competition Law.
In this aspect, Anti-Unfair Competition Law provides limited additional protection to certain civil rights and interests under certain condition besides the Patent Law. When determining whether a commodity shall be protected by Anti-Unfair Competition Law, the degree of resemblance between the designs, the distinctness and awareness of the commodity for which protection is sought, and the degree of public attention should be taken into consideration. Therefore, presenting evidence of the distinctness and awareness of the commodity is quite important for an enterprise while initiating enforcement actions.

Copyright © 2016 Jiaquan IP Law. All Rights Reserved. 粤ICP备16000884号