Ⅰ.GUIDING CASES AND QUESTIONS PUT FORWARD Article 5.3 of the Law of the People's Republic of China for Anti-unfair Competition(the Anti-unfair Competition Law)provides that"using,without authorization,the enterprise names or personal names of others on their own goods,leading purchasers to mistake them for the goods of others"constitutes acts of unfair competition.In accordance with Provisions on Administration of Enterprise Name Registration and Measures for the Implementation of Administration of Enterprise Name Registration,an enterprise name consists of4 components,including the administrative area,the shop name(字号),trade or
基金项目(Foundation): sponsored by for New Century Excellent Talents Support Program of the Ministry of Education(NECT-11-0226)
- 1 Wang Xiaoye,Study of the Anti-unfair Competition Law,Social Sciences Academic Press,2007
- 2 Though an enterprise doesn't necessarily have the status as a legal person(such as a sole proprietorship and a partnership),but in accordance with the instrument measure of taking easy matters as example for serious matters,the enterprise shall have the right to name when even the individual businesses and individual partnerships do so.
- 3 Wang Liming,Guo Mingrui,and Fang Liufang,New Study on the Civil Law(Part One),China University of Political Science and Law Press,1988 edition,p.523
- 4 See note 3 Wang Liming,etc.p.277
- 5 See Zhong Mingzhao as chief editor,Anti-unfair Competition Law,Law Press,1997 edition,p.209;see Shao Jiandong,Anti-unfair Competition Law of China,Jiangxi People's Publishing House,1994 edition,p.75
- 6 See the Gazette,Vol.6,2008
- 7 See note 13,Kong Xiangjun,p.197
- 8 Shao Jiandong,Textbook ofAnti-unfair Competition Law,Intellectual Property Publishing House,2003 edition,p.73
- 9 For example,in the case of an unfair competition conflict China Pharmaceutical University v.Jiangsu Free Technology Co.,Ltd,though the name of the plaintiff China Pharmaceutical University is not an enterprise name,the court still applies Article 5.3 of the Anti-unfair Competition Law.For detailed information,see the Gazette,Vol.6,2005;in the enterprise name conflict case Heating Equipment Factory of Tieling City,Liaoning Province v.Zhou Chengfu etc,the court found that it constituted an infringement on the plaintiff s right of name for the defendant to change the telephone number of the plaintiff in the telephone directory to be its own.For detailed information,see the Gazette,Vol.6,2000.In the case of an unfair competition conflict Guangzhou Flashlight Industry Corporation v.Ninghai County Automobile Parts Co.,Ltd,the defendant used the plaintiff's product code in its own flashlight packages.The court thought the product code is a special form of the enterprise name and hold that the defendant's act constitutes unfair competition.For detailed information,see Yongmingchuzi No.317 Civil Judgment decided by Ningbo Intermediate People's Court published in the Select Guidance Cases of the High People's Court of Zhejiang Province,2009,Vol.1.
- 10 See Kong Xiaojun,Trademark and the Anti-unfair Competition Law:Principles and Cases,Law Press,2009 edition,p.752
- 11 Article 26 of the General Principles of the Civil Law:an individual business may adopt a trade name(字号)Article 33:an individual partnership may adopt a trade name(字号).
- 12 See Tong Rou,General Rules of the Civil Law,Chinese People's Public Security University Press,1992 Edition,p.149.
- 13 See Jiang Ping,The Theory of Legal Person System,China University of Political Science and Law Press,1994 Edition,pp.164-165.
- 14 See Wang Liming,On Personality Rights Law,Renmin University of China Press,2005 Edition,p.427.
- 15 See Yang Lixin,On Personal Rights Law,People's Court Press,2002 Edition,p.512.
- 16 See Fan Jian Wang Jianwen,On the Commercial Law,Higher Education Press,2003 Edition,pp.467-468.
- 17 See Fan Jian,The Commercial Law,Higher Education Press,Peking University Press,2002 Edition,p.71.
- 18 Liu Chunmao,Intellectual Property Rights,Renmin University of China Press,1997 Edition,p.824,p.826.
- 19 See Note 34,Fan Jian,Wang Jianwen,p385.
- 20 Wang Liming,Yang Lixin,Yao Hui,Personality Right Law,Law Press,2007 Edition,p.97;See Yang Lixin,Personal Right Law,the People's Court Press,2002 Edition,p.514.
- 21 See Hu Kangsheng,Speech on Anti-unfair Competition Law of the People's Republic of China,Law Press,1994 Edition,p.50.
- 22 Zhao Wanyi,Studies on Basic Problems of Commercial Law,Law Press,2002 Edition,p338.
- 23 Jin Yongjun,Principles of Intellectual Property Law,China University of Political Science and Law Press,2002 Edition,p397.
- 24 See Note 49 Canaris,p.333.
- 25 Commercial Law of Korea,translated by Wu Rihuan,China University of Political Science and Law Press,1999 Edition,p.6.
- 26 See Huang Mingjie,Intersection of Competition Law and Intellectual Property Law,Angle Press Company,2009 Edition,p.447.
- 27 See Note 49,Canaris,p.334.
- 28 See Xie Gen,"The Protection Method of Private Interest",cited from Xu Difeng,Xie Gen,Li Yougen,Intellectual Property Law:System,Theories,Cases and Problems,Science Press,2005 Edition,p.174.
- 29 See Note 54,Wang Zejian,p.135.
- 30 See Note 63,Huang Mingjie,p.439.
- 31 See Note 63,Huang Mingjie,p.439.
- 32 See Li Yougen,On Consumers'Influence in the Determination of Unfair Competition,Journal of Nanjing University,Vol.1,2013.
- 33 Bonito Boats v.Thunder Craft Boats,489 U.S.141,157(1989).