Unique protection of "brand" by law
"Brand" has the dual character of being a "materialized" personality. It is not only an extension of personality, but also the spiritual form of the commodity. At the same time, it is not only separated from the ontology of spiritual activity - the person who creates the "brand", but also can exist independently from the "object" as a commodity. This determines that the protection of the "brand" by law is neither a mere protection of personality, nor protection of "object" alone, but has its unique object of protection --- as a "brand" of independent existence.
"Brand" is formed by the combination of the inherent qualities of the product and the external identification. The protection of the "brand" by law also includes the above two aspects. One aspect is the protection of the spiritual achievements that form the characteristics of the goods, and the other is It is the protection of external signs indicating this characteristic. "Legal protection" means the formation of certain rights that are legally admissible. Therefore, the protection of "brand" by law also means the formation of assertable rights in these two aspects.
The first is the protection of the spiritual achievements that form the characteristics of commodities. The factors that form the characteristics of a commodity are different in different commodities. In some commodities, the formulation or technology of the commodity is mainly, and in other commodities, the processing process or production process of the commodity is not limited. In different commodities, different factors that form the characteristics of the product become the object of legal protection. If the product quality is formed by its technology, the invention patent can be applied for and the patent right in the patent law can be formed; if the product quality is formed by a unique formula or production process, this formula or process can constitute a "commercial "Secret" is protected by contract law and anti-unfair competition law. The legal protection of the spiritual achievements that form the characteristics of commodities lies in the fact that the use of spiritual achievements does not depart from its creator.
Followed by the protection of the external signs indicating the characteristics of the goods. The external identification of goods generally includes the exclusive identification of the goods, the unique name of the goods, and the unique packaging and decoration of the goods. For a product's proprietary logo, a trademark can be registered to form the trademark right of the trademark law. For the special packaging and decoration of the product, a design patent can be applied to form the patent right for the design. Where the parties have neither registered trademarks nor applied for design patents for the marks outside the goods, there is special protection under the Unfair Competition Law: if a certain commodity is established as a well-known commodity, its unique name, Packing and decorating are not counterfeited by others. The protection of the external sign of the law is to enable the external sign to indicate that the function of a specific merchandise is not stolen, that is, to maintain association between a specific sign and a certain quality of merchandise at all times, so as to maintain a certain humanity The relevance of spiritual traits.
It can be seen that the reason that the term "brand" does not appear in the law and that the ownership of the "brand" is that the two aspects of the "brand" have their own independence, each has its own carrier format and different attributes and functions, and they need different forms respectively. Legal protection. Therefore, the law protects two aspects of the "brand" separately. The right formed by the “brand†is also different from the “all†in the general sense. Its core is to make the characteristics of the commodity—whether it is the actual intrinsic quality or the indicative quality—not to leave the The nature of the giver.
Legal recognition of "brand" infringement
Because the carrier forms of the "brand" are subject to different legal protections, the "brand" infringement often manifests itself in different types of infringements, such as infringement of patent rights, infringement of trademark rights, malicious disclosure of trade secrets, counterfeit packaging, etc. Wait. In most cases, these legal norms can play a role of protecting “brands†independently or in coordination with one another, which weakens and obscures the legal implications of “brands†as an independent “objectâ€. However, in some cases, the cognition of the legal meaning of "brand" is still extremely important.
As with the rights to "things," the realization of "brand" rights sometimes relies on disengaging it from the owner. For example, an organization can license its products for use by others, or it can license its products to trademarks or packaging. In some cases, companies can even hold the copyright of the product's recipes, trademarks, and packaging and decorating designs, and license all of them for use without actually producing the products themselves. In the latter case, it will be particularly difficult in judicial practice: If someone counterfeits the packaging and decoration of products that are licensed to produce, who is the right to infringe? Is it the right to infringe the actual producer or the right of the packaging and decoration copyright holder? Is it as an infringement on the identification of the product or as a violation of the copyright? If the product was produced by different licensed users before and after, who is the right to infringe? When a "prestigious commodity" formed at the time of the previous producer's production was transferred to another person's production, could the legal status of the "well-known commodity" continue?
Answering these questions depends on a clear understanding of the legal implications of the "brand" of the product. The key to this is the grasp of the mentality of the product that appears as a "brand." What is important for a particular product is the distinctive nature of the product and the content of the human mental activity that forms the trait. In the foregoing example, if the product differentiation feature is formed by the formulation of the product, the essence of the product that constitutes the spiritual form—“brandâ€â€”is this formulation. The production process of commodities is only the process of realizing the characteristics of commodities, and does not have the crucial significance of determining the characteristics of commodities. The objects that indicate the characteristics of the goods and the unique packaging and decorating are also the formula, not the production process or others. Therefore, in the case where the trademark of a product and the specific package and decoration are fixedly indicative of the recipe of the product, the actual producer of the product is replaced in any way, and the produced product should be considered as a product that is legally identical because it is The spirit of the commodity has not changed. In the same way, if a company has a formula that constitutes the inherent qualities of a certain commodity, and marks and packaging and decoration that indicate this quality, even if it does not actually invest in the production of the commodity, it still owns the “brand†of the commodity in a legal sense. It is possible to claim various rights, including the right to package and decorate, for the mentally-oriented goods.