The hottest talk about the special packaging prote

Talking about the special packaging protection of well-known goods

the packaging and decoration of counterfeit well-known goods is a concealed commodity counterfeiting behavior, which is close to the packaging and decoration of the same or similar well-known goods in appearance, so as to cause confusion and misunderstanding of consumers when buying. It is a serious unfair competition behavior that violates the principles of fairness and good faith

I. characteristics of commodity packaging and decoration commodity packaging is an auxiliary and container used on commodities to identify commodities and facilitate carrying, storage and transportation; Commodity decoration refers to the words, patterns, colors and their permutations and combinations attached to commodities or their packages in order to identify and beautify commodities. Like trademarks, commodity packaging and decoration belong to the identification mark of commodities and the category of intellectual property rights

compared with other commercial signs, the packaging and decoration of commodities generally have the following characteristics: first, the packaging and decoration of commodities generally reflect the content of commodities in an intuitive form, reflecting the specific external form of commodities. For example, the pattern of moon cakes can be directly used on the packaging of moon cakes, and the words "moisturize the skin" can be directly highlighted on the decoration of soap; Second, the packaging and decoration of commodities decorate commodities, beautify commodities and publicize commodities through aesthetic patterns, colors and shapes. It does not need to be significant, as long as it can achieve the purpose of promoting sales and making profits. This is the most different from trademarks. Trademarks should have recognition and significance, such as congratulation on the new year, the word of blessing and other folk agreed auspicious signs, although they are not suitable for use as trademarks, It can still become the words on commodity packaging and decoration; Third, the packaging and decoration of goods generally do not have exclusivity and exclusivity (except for well-known goods), and other people cannot be prohibited from using the same or similar packaging and decoration. Because the words and graphics on the packaging and decoration of goods are generally not differentiated, it is unfair to have only one company monopolize their packaging and decoration; Fourth, the packaging and decoration of commodities can be changed at any time according to the needs of the market, which has greater flexibility

II. Protection of the unique packaging and decoration of well-known commodities in practice. Well known commodities refer to commodities that are well-known in the market and known to the relevant public. At present, there is no unified standard for the identification of well-known commodities, which can only be discretionary by the judicial organs in specific cases. Article 4 of the "Several Provisions on the prohibition of unfair competition by counterfeiting the unique names, packaging and decoration of well-known commodities" issued by the State Administration for Industry and Commerce (order 33) explains that if the name, packaging and decoration of a commodity are used the same or similar by others without authorization, which is enough to cause buyers to misunderstand, the commodity can be recognized as a well-known commodity. It is certain that the identification of well-known goods in infringement is not isolated, but closely related to counterfeiting. If there is no problem of counterfeiting, it is meaningless to identify well-known goods; If counterfeiting occurs, which leads to the misunderstanding of buyers, but does not recognize well-known goods, the result can only be to ignore the problem of unfair competition in the market. The packaging and decoration of well-known commodities reflect the business reputation and commodity reputation of operators to a certain extent, and should be strictly and widely protected in law. The second paragraph of Article 5 of the Anti Unfair Competition Law promulgated in 1993 stipulates that the unauthorized use of the unique name, packaging, decoration of well-known goods, or the name, packaging, decoration similar to well-known goods, causes confusion with other people's well-known goods, and makes buyers mistakenly believe that the behavior of the well-known goods is an act of unfair competition, which provides a favorable legal basis for the protection of the packaging and decoration of well-known goods

case 1: from 1993 to 1996, the "cat shaped clock" produced by Guangzhou Oriental Mold Co., Ltd. used a commodity outer packaging similar to the "Garfield" brand cat shaped clock previously used by Bowers Co., Ltd. At the end of 1996, Bowers filed a complaint with Guangzhou Administration for Industry and commerce. In this case, the Guangzhou Administration for Industry and Commerce held that the behavior of Dongfang company constituted an act of unfair competition stipulated in Article 5, paragraph 2 of the anti unfair competition law, and it was confiscated of the infringing packaging and imposed a fine

case 2: at the request of its customers, Hongfa electric appliance store in Liwan District, Guangzhou purchased 100 fake "Shure" brand microphones with special decoration from somewhere in Su, ready to sell them. Before they were sold, they were seized by Guangzhou Administration for Industry and Commerce on December 19, 1996. Guangzhou Administration for Industry and Commerce believed that the behavior of Hongfa electric appliance store constituted an unfair competition behavior referred to in Article 5, paragraph 2 of the anti unfair competition law, and ordered the parties to stop the illegal behavior and eliminate the infringement decoration

in the first case, "Garfield" brand cat shaped clock is a well-known brand in the clock industry, and its unique packaging should be protected. In the second case, the behavior of imitating the decoration unique to well-known goods occurred in the sales link, which is still a certain distance from the manufacturer directly imitating the decoration unique to well-known goods. From these two cases, we can see that there are several points worth noting about the packaging and decoration of goods protected by the Anti Unfair Competition Law: 1 This product is well-known

to judge whether a commodity is well-known, it needs to be investigated among the relevant public, combined with factors such as commodity sales area, time, reputation and advertising volume. Generally speaking, trademarks from different sources between goods are the main object to judge whether the goods are well-known. The higher the popularity of the trademark, the higher the popularity of the goods marked with the trademark

2. The packaging and decoration are unique to the commodity and have significant distinctive characteristics. The base material is the supporting layer

the packaging and decoration are not universal for related goods, such as the cat shape in the first case. From a legal point of view, this kind of packaging and decoration design of products is limited to "non functional design", that is, this kind of packaging and decoration, like other packaging and decoration, has no impact on the use function of products, so it will not develop into a universal packaging for related goods. At the same time, this kind of packaging and decoration should be significant. Because of its significance, it plays a certain role in identifying the source of products and protecting them is meaningful

3. The packaging and decoration has not been applied for a registered trademark, nor has it obtained a design patent

once its packaging and decoration become a registered trademark, it will be directly protected by the trademark law. If it obtains a patent right, it will be protected by the patent law

4. Unauthorized use of packaging and decoration unique to well-known commodities, including unauthorized use by producers and unauthorized use by sellers, should be treated differently

counterfeiting the unique packaging and decoration of well-known goods mainly occurs to accelerate the elimination of backward production capacity in the production link, which is relatively easy to identify. A small amount of infringement occurs in the sales process. For example, in the second case, the seller used others' decoration without authorization in the sales. Generally speaking, the infringement of counterfeiting the unique packaging and decoration of well-known goods is not premised on the perpetrator's intention. However, the seller's unauthorized use behavior should take into account its subjective knowledge or knowledge. In this regard, Article 9 of the provisions on the prohibition of unfair competition by counterfeiting the names, packaging and decoration unique to well-known goods stipulates that those who sell goods that knowingly or should know are counterfeiting the decoration unique to well-known goods shall be punished accordingly

5. Counterfeiting the unique packaging and decoration of well-known goods has indeed caused misunderstanding and confusion

counterfeiting is an act of unfair competition, which is regulated by the anti unfair competition law precisely because it has the consequences of market confusion. However, there is no explicit provision in our law on how to judge whether it has caused confusion consequences, which requires judicial organs to deal with individual cases. According to Article 2 of the "Several Provisions on the prohibition of unfair competition by counterfeiting the unique names, packaging and decoration of well-known goods", the vibration wear-resistant testing machine mentioned in the preceding paragraph misleads buyers into thinking of the well-known goods, including enough to mislead buyers into thinking of the well-known goods. That is, as long as the misrecognition behavior reaches the "possible" level, the confusion consequences can be recognized.

Third, the protection of China's existing relevant legislation. At present, China only stipulates the unique packaging and decoration of well-known goods in the anti unfair competition law, which will not cause the protection of false structures. Although "well-known" and "unique" are further stipulated in the judicial interpretation, the interpretation is relatively vague, It makes it more difficult for the administrative department for Industry and commerce to determine the infringement during inspection, because the packaging and decoration of general goods are not protected. To confirm the infringement, we must first determine that the counterfeit goods are well-known goods, and that the packaging and decoration are unique rather than universal, etc. Of course, the well-known commodity owner can apply for a patent to protect the packaging and decoration that meet the requirements of the design patent, but it can only be protected for ten years

foreign trademark laws often contain the registration system of three-dimensional trademarks, so that the owner of well-known goods can register their unique packaging and decoration to actively protect and protect in advance. China now only accepts the registration of plane trademarks. Although some words and graphics on the packaging and decoration can be registered as trademarks, as for the overall packaging and decoration, the owners of well-known goods are powerless. When the legislature revises the trademark law again, it should take into account the protection of the unique packaging and decoration of well-known goods through three-dimensional trademarks

reprinted from: Education