A series of major decisions and deployments around anti-unfair competition have been introduced one after another

Intellectual property "private rights" rise to the height of national strategy

　　Our reporter Wan Jing

　　To commemorate the 22nd "World Intellectual Property Day", the Intellectual Property Research Center of China University of Political Science and Law and the Intellectual Property Alumni Association of China University of Political Science and Law recently jointly held the "Third 'Knowledge World Forum' - Symposium on Anti-Unfair Competition".

　　A number of experts, scholars and industry insiders from the field of practice focused on the "Outline for Building a Powerful Intellectual Property Country (2021-2035)" (hereinafter referred to as the "Outline") and the "Supreme People's Court on the Application of the Anti-Unfair Competition Law of the People's Republic of China". Interpretation of Issues" (hereinafter referred to as "Interpretation"), to conduct in-depth discussions on unfair competition behaviors of social concern, such as counterfeiting and confusion, commercial slander, and false propaganda.

Decisions and deployments are coming out one after another

Improve the fair competition system

　　The 22nd "World Intellectual Property Day" is destined to leave an indelible mark in the history of intellectual property protection in my country.

　　In late September 2021, the Central Committee of the Communist Party of China and the State Council issued the "Outline", drawing a grand blueprint for my country to accelerate the construction of an intellectual property power.

my country's transformation from a big country of intellectual property introduction to a big country of creation, and the transformation of intellectual property work from the pursuit of quantity to the improvement of quality has accelerated in an all-round way.

　　At the beginning of this year, the Office of the Inter-Ministerial Joint Conference on the Implementation of the Intellectual Property Strategy of the State Council announced the Outline for Building a Strong Intellectual Property Country and the Annual Promotion Plan for the Implementation of the 14th Five-Year Plan, specifying the key tasks and work measures for intellectual property protection in 2021-2022, involving There are 115 items in total in 7 areas, including increasing judicial efforts in anti-monopoly and anti-unfair competition.

　　In mid-March, the Interpretation was released, aiming to strengthen the fundamental position of competition policy, further improve the rules for adjudication of competition cases, improve the quality, efficiency and credibility of trials, and promote innovation and sustainable and healthy economic development.

It will take effect from March 20, 2022.

　　Qu Sanqiang, vice president of China Intellectual Property Law Research Association and president of Beijing Intellectual Property Law Research Association, believes that my country is in a situation of great changes unseen in the world in a century. Improving the fair competition system, promoting the construction of a high-standard market system, and accelerating the construction of the rule of law against unfair competition are the top priorities.

　　"In recent years, my country has made a series of major decisions and deployments around anti-unfair competition work. The formulation and promulgation of this Interpretation follows the three general ideas of 'responding to social concerns', 'strengthening rule guidance' and 'adhering to serving the overall situation' , it is of great significance to implement the fair competition policy, improve the fair competition system, and implement the construction of a high-standard market system." Qu Sanqiang said.

　　Zhang Chu, director of the Intellectual Property Research Center of China University of Political Science and Law, pointed out that the rights, boundaries and responsibilities of new fields and new business forms have put forward new requirements for judicial practice.

While the Interpretation responds to social concerns and strengthens the leading role of rules, it also brings some legal application issues. A multi-faceted discussion on the understanding and application of the Interpretation will help promote the simultaneous development of academic research and judicial practice.

High proportion of counterfeiting and confusion cases

The introduction of judicial interpretation regulations

　　In the second half of 2021, three trademark infringement cases related to local snacks have attracted widespread attention from all walks of life.

　　In September 2021, the well-known snack "Tongguan Roujiamo" in Shaanxi faced the situation of being sued by the "Tongguan Roujiamo Association" for tens of thousands of yuan in compensation due to the word "Tongguan" on the signboards of more than 100 snack bars across the country. .

In the early morning of November 26 of the same year, the State Intellectual Property Office responded that the registrant of "Tongguan Roujiamo" has no right to license the use of the collective mark of geographical indications and collect franchise fees from merchants outside the specific area of ​​Tongguan.

On the afternoon of the same day, the "Tongguan Roujiamo Association" issued a letter of apology for the rights protection of the Tongguan Roujiamo trademark.

　　The above-mentioned cases and the subsequent cases of "Hu La Soup in Xiaoyao Town" and "Qinghuajiao" in Sichuan all reflect the problem of how to distinguish between legitimate business behavior and counterfeiting and confusing behavior.

　　It is understood that in 2021, courts at all levels across the country will conclude a total of 8,654 cases of unfair competition disputes, of which counterfeiting and confusion cases account for a large proportion.

Innovation is one of the most important strategic goals of the intellectual property system. In addition to strengthening intellectual property protection, it is also necessary to properly handle the relationship between protection, regulation of abuse, and prevention of monopoly, and promote the cultivation of an innovation environment through market-driven and government policies.

　　To this end, the Interpretation uses 11 articles, focusing on three aspects to refine the provisions on "counterfeiting and confusion" in Article 6 of the Anti-Unfair Competition Law: First, Article 4 of the Interpretation clearly states that "the "The meaning of the logo and the factors to be considered for identification; secondly, it is clearly pointed out that the marks that are prohibited by the Trademark Law cannot be protected by the Anti-Unfair Competition Law; 》Detailed the scope of market entities whose names can be protected.

　　Qu Sanqiang pointed out in this analysis that the "Explanation" further clarified and refined a series of unfair competition behaviors that have attracted much attention from the society, such as "counterfeiting and confusion".

Such revisions are to adapt to the current new situation and new tasks, to properly handle the relationship between development and security, efficiency and fairness, vitality and order, and to create a fair and transparent environment for various market players to invest in new formats and regulate healthy development. , predictable competitive environment.

Clarify the purpose of "communication"

"Commercial defamation"

　　Experts at the meeting believed that the "improvement of the legal system for regulating the abuse of intellectual property rights" required by the "Outline" not only refers to the legal system in the fields of anti-unfair competition, but also includes many "prohibition of abuse of rights" mechanisms built into special laws on intellectual property rights, including A restraint mechanism to oppose and restrict unfair competition such as commercial slander and false propaganda.

　　Article 20 of the Interpretation stipulates: "Where an operator spreads false or misleading information fabricated by others and damages the business reputation and commodity reputation of competitors, the people's court shall determine it in accordance with Article 11 of the Anti-Unfair Competition Law. However, Article 11 of the Anti-Unfair Competition Law stipulates: “Business operators shall not fabricate or spread false or misleading information, and damage the business reputation and product reputation of competitors.”

　　By comparing the two, it can be seen that the Supreme Court's judicial interpretation emphasizes that even if there is no evidence to prove that he is the creator of false information, "spreading false information fabricated by others" may also constitute commercial slander.

　　Lin Ziying, a national judicial expert and researcher at the Supreme People's Court Intellectual Property Judicial Protection Research Center, believes that there is not much difference in judicial determination of commercial defamation cases. The first condition is to fabricate false and misleading information; 3. The behavior is pertinent and specific; 4. The purpose of the behavior is to damage the business reputation or commodity reputation of competitors.

Regarding the determination of "communication" in commercial slander, although the specific method and scope of the communication are not clearly specified at the legal level, the key to the determination is whether the result of the "communication" achieves the purpose of damaging the business reputation of competitors or the reputation of goods.

　　"The determination of 'targeting' should include the presumed determination method. As long as the 'targeting' is sufficient to form a direct and necessary connection, so that the public clearly points to the specificity, it can be determined that its behavior is targeted. Commercial slander can also be applied Statutory compensation." Lin Ziying said.

　　Yin Fenglin, associate professor of the School of Intellectual Property, University of Chinese Academy of Sciences and director of the Competition Law Committee of the Beijing Intellectual Property Law Research Association, believes that in judicial practice, the determination of malicious intellectual property litigation is mainly reflected in the prosecution knowing that the patent certificate should be invalid, and the trademark registration knowing that the patent certificate should be invalid. The certificate should be invalid or revoked to sue, to sue knowing that he is not the real copyright owner, and to sue or take preservation measures knowing that his intellectual property is unstable.

　　"The three causes of malicious intellectual property litigation are: the improvement of the level of intellectual property protection; the instability of intellectual property rights certificates and certifications; and the unclear boundaries of intellectual property objects and rights content." Yin Fenglin said.

Refinement of business ethics

Strictly implement intellectual property protection

　　At the seminar, Chen Ruojian, director of the Rights Protection Committee of the All-China Federation of Industry and Commerce Mergers and Acquisitions Association, combined with the case of China Red Bull and Thailand's Tencel on the dispute over the "Red Bull" trademark, and proposed that when a business has an intellectual property dispute, if consumers have the right to know and the right to choose When the legitimate rights and interests are damaged, are there business ethics problems for the operators, and how should consumers protect their rights?

　　In this regard, Sun Guorui, president of the Beijing Intellectual Property Research Association and director of the Science and Technology Law and Intellectual Property Center of Beihang University, analyzed that from the perspective of business ethics, in order to protect the rights and interests of consumers, Thailand's Tencel and Reignwood Group use the same trademark. Products should be differentiated, and consumers should not be asked to increase their attention to distinguish them.

"Business reputation is closely related to business ethics, and the use of confusing propaganda means damage to trademarks and corporate reputation."

　　Sun Guorui suggested that from the point of view of business ethics, enterprises should make distinctions between products, advertisements and trademarks. It also violates consumers' right to know and right to choose.

　　Experts at the meeting highly recognized the detailed provisions on "business ethics" in the Interpretation.

　　The "Interpretation" clearly states that the people's court can identify the code of conduct that is generally followed and recognized in specific commercial fields as "business ethics" as stipulated in Article 2 of the Anti-Unfair Competition Law.

The people's court shall, in light of the specific circumstances of the case, comprehensively consider factors such as industry rules or business practices, the operator's subjective state, the transaction counterparty's willingness to choose, the impact on consumers' rights and interests, market competition order, and social and public interests, and judge the operator in accordance with the law. Whether it violates business ethics.

　　Liu Ying, executive director of the Intellectual Property Research Center of China University of Political Science and Law and vice president of Beijing Intellectual Property Research Association, pointed out that the principle of good faith is clearly reflected in the Anti-Unfair Competition Law, the Consumer Rights Protection Law, and the E-commerce Law.

On this basis, civil rights cannot be abused to damage the legitimate rights and interests of others. Specific abuses include arbitrarily tearing up contracts, poaching competitors’ “footballs” with high salaries, taking away customer data and other violations of trade secrets, and indiscriminate litigation to destroy the market The conduct of the normal trading order.

　　"From the perspective of credit research, the above-mentioned acts are all acts of dishonesty. Article 9 of the State Administration for Market Regulation Order No. 44 "Measures for the Administration of the List of the Untrustworthy with Serious Illegal Regulations for Market Supervision and Administration" clearly stipulates that the violation of commercial secrets, commercial slander, and the organization of false transactions, etc. Unfair competition that seriously disrupts the order of public competition and has been subject to heavier administrative penalties is included in the list of serious violations and dishonesty." Liu Ying said.

　　Regarding the recent deployment of a series of top-level structures of my country's intellectual property system, the participating experts generally believed that this is to raise the "private right" of intellectual property to the height of national strategy, which reflects that my country regards intellectual property as a strategic resource for national development and Attitude and determination to the core elements of international competitiveness.