Item (1) of Article 5 of China's Anti-Unfair Competition Law stipulates that the act of counterfeiting another person's registered trademark belongs to unfair competition. This clause regulates acts that harm fair competition from the perspective of safeguarding the exclusive right to use a registered trademark, rather than from the perspective of whether the "buyer" mistakenly recognizes it. However, in the market competition, a registered trademark is mainly a sign to distinguish different commodities, businesses or services. Usually, only a well-known trademark can easily cause the "buyer" to misunderstand and confuse the market (whether the trademark is registered or not). The focus of trademark regulation in the anti-unfair competition law should be to prevent the abuse of trademarks and to take advantage of the competitive advantages of market players who have already obtained competitive advantages. This legislative intention coincides with the provisions of Article 5 (2) of China's anti-unfair competition law. Therefore, it is suggested that in the revision of China's Anti-Unfair Competition Law, the provisions of Item (1) of Article 5 should be deleted and the maintenance of trademarks should be incorporated into Item (2). 2. Article 5 (2) of China's Anti-Unfair Competition Law is about the act of counterfeiting or imitating the unique name, packaging and decoration of well-known commodities.
Item (2) of Article 5 of China's Anti-Unfair Competition Law stipulates that it is forbidden to use the unique name, packaging and decoration of well-known goods without authorization, which will cause confusion with other people's well-known goods and make buyers mistake the well-known goods. This provision fully pays attention to the position of the "buyer" in the market chaos, so it can basically be retained when amending the law, but several problems need to be paid attention to. First, the maintenance of trademarks is reflected in this clause; Secondly, in market trading activities, besides commodities, businesses and services are easily confused. The anti-unfair competition law should not only regulate the confusion of commodities, but also regulate the confusion of businesses and services. Thirdly, due to the complexity of real economic life, there may be other counterfeit objects besides trademarks, names, decoration and packaging, so we should not list the types of protected signs, but give examples; Fourthly, although we have made a concrete analysis of the problem of "buyer", it is an abstract concept in the application of this article, and it can be judged that the misunderstanding of the buyer and the confusion of the market are caused by the misunderstanding of the buyer. Therefore, the "buyer" in this clause can also be modified to a more abstract "person". Of course, the people here. To sum up, it is suggested that Item (2) of Article 5 of China's Anti-Unfair Competition Law be amended as: "Unauthorized use of the unique name, trademark, packaging and decoration of a well-known commodity, merchant or service causes confusion with other people's well-known commodities, merchants or services, which leads people to misunderstand that it is the well-known commodity, merchant or service." 3. Provisions of Item (3) of Article 5 of China Anti-Unfair Competition Law on unauthorized use of other people's enterprise names and shop names.
Item (3) of Article 5 of China's Anti-Unfair Competition Law stipulates that it is forbidden to use other people's enterprise names without authorization, which makes people mistake them for other people's goods. In practice, unauthorized use of enterprise name right and name right causes market confusion and misunderstanding of "buyers". When the exclusive right of enterprise name and natural person name conflicts with registered trademark, design patent right and website name exclusive right, law enforcement and justice should be carried out from the perspective of preventing misunderstanding of "buyers" and market confusion. Of course, not only commodities will be mistaken for unauthorized use of other people's enterprise names and font sizes, but also businesses or services will be mistaken for unauthorized use of other people's enterprise names and font sizes. Therefore, it is suggested that Item (3) of Article 5 of China's Anti-Unfair Competition Law be amended to read: "Unauthorized use of other people's enterprise names and shop names makes people mistake them for other people's goods, businesses or services." 4. Provisions on false statements in Item (4) of Article 5 of China's Anti-Unfair Competition Law.
Article 5 (4) of China's Anti-Unfair Competition Law stipulates that it is forbidden to forge or falsely use quality marks such as certification marks and brand-name marks on commodities, forge the place of origin, and make misleading false representations about the quality of commodities. However, when we analyze this provision from the perspective of "buyers" in the market chaos, we find that there is no confusion with other people's goods, businesses or services through misleading false representations of our own goods. Therefore, it is suggested to delete Item (4) of Article 5 of China's Anti-Unfair Competition Law when revising. Since the expression of commodities is also a specific form of propaganda, the anti-unfair competition law should regulate false expression as propaganda. 5. Exceptions should be added to Article 5 of China's Anti-Unfair Competition Law.
According to our specific research on the "buyer" problem in market confusion, we know that the identification of misidentification and market confusion results should follow the principle of comprehensive balance, and only in this way can we achieve substantive fairness and justice. China's anti-unfair competition law should also have exception clauses when regulating market chaos to reflect the spirit of balance of interests. Therefore, combined with the actual situation and the relevant legislation of various countries (regions), it is suggested to add an exception clause in Article 5 of China's Anti-Unfair Competition Law, that is, "the following acts are generally not regarded as market chaos:
(1) The famous logo used is the common name or customary logo of goods, businesses or services;
(2) Use your name in good faith;
(3) the act of using another person's trademark in good faith before it is generally recognized by the public;
(four) other acts that are not regarded as market chaos according to the principle of balance of interests. "