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- 저자 : 전정현(Jung-Hyon (Jamie) Jun) (검색결과 2 건)
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전정현(Jung-Hyon (Jamie) Jun) 세창출판사 2015 창작과 권리 Vol.- No.78
In the Chapter Two (titled “Unfair Competition”) of Unfair Competition Act in PRC (hereunder ‘the Act’), there are eleven provisions in that specify the actions that are regarded as unfair competition. At the same time the article 2 in the Chapter One of the Act (General Rules), stipulates the basic principles of fair competition and general meaning of unfair competition, (so-called an umbrella provision). There is an academic controversy with regard to the relationship between the article 2 of the Act (i.e. the general provision) and the eleven specific provisions in the Act. One views that the umbrella provision can be independently applied without applying other specific provisions and therefore any action that violates the umbrella provision can be recognized as an unfair competition, even though it is not specified in the specific provisions in the Act. Some scholars are against such view. However, courts in the PRC have the former view, namely that the general provision can be an independently applied. Such opinion of PRC courts is understandable. As the economy of PRC grows rapidly, new forms of unfair competition actions continue to emerge. Accordingly, PRC courts widely apply the general provision in the Act in order to widen the narrowly defined scope of unfair completion actions in the Chapter Two of the Act. This article aims to help understanding the meaning and court precedents of the general provision of the Act, and comprehend the significance of it. This article first covers the meaning of the general provision of the Act. Second it focuses on the recent court cases in which the general provision was applied with regard to unfair competition actions.
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전정현(Jung Hyon(Jamie) Jun) 세창출판사 2015 창작과 권리 Vol.- No.81
It seems obvious that a trademark application should be rejected if there is a prior registered trademark that is identical with or similar to the subject of the application, for the same or similar goods or services. However, there are two notable (potential) exceptions with regard to this simple principle under the Trademark Act in PRC: a continuing relationship(延续关系) and co-existence agreement(共存协议). First, the issue of continuing relationship arises from the fact that brand owners tend to gradually expand the scope of the classes of goods or services for their trademark registrations as their business grows or their brand becomes more famous. Because of this common practice, it is an issue whether a trademark application should be examined as an independent mark or as a part of the whole brand group. Second, the pre-existing registered trademark owner may consent to the registration of the similar succeeding application. The issue is whether the Trademark Office should refuse the registration even if the owner of the registered trademark agrees with such registration. In this article, the two issues of continuing relationship and co-existence agreement under the Trademark Act in PRC are analyzed. Also recent rulings of People's Court in PRC regarding these issues are introduced.
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