If you have time, please refer to the following.
In 2004, the Supreme People's Court began to formulate the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Cases of Unfair Competition (hereinafter referred to as the Interpretation). After repeated revisions, at the end of 2005, we solicited opinions from the whole society through China Court Network. 65438+On February 30, 2006, this interpretation was adopted by the the Supreme People's Court Judicial Committee at its meeting 14 12, and came into effect on February 30, 2007.
The promulgation of the Interpretation has provided a certain degree of civil relief to curb many acts of infringement of intellectual property rights in China and truly protect intellectual property owners, and also greatly increased the cost of infringement.
Problems existing in anti-unfair competition law and its explanation background. The purpose of this interpretation is to solve the judicial application of key laws in China's anti-unfair competition law.
China's law against unfair competition was promulgated at the end of 1993. At that time, China's market economy had just started. In the process of transition from planned economy to market economy, many market irregularities have appeared, and a law is urgently needed to regulate them. This is the background of the promulgation of the Anti-Unfair Competition Law. This law is also one of the few laws regulating the market economic order in China at present.
As we all know, a complete competition law includes anti-unfair competition law and anti-monopoly law, which are generally combined into one in western countries. However, China's Anti-Unfair Competition Law lacks provisions on most monopolistic behaviors, and the Anti-Monopoly Law has not yet been promulgated, which makes many behaviors appear legal vacuum in practice.
The Anti-Unfair Competition Law covers 1 1 acts such as infringement of intellectual property rights, administrative monopoly, monopoly of monopolistic enterprises, commercial bribery, infringement of trade secrets, unfair low-price sales, false advertising, damage to competitors' goodwill, and false bidding. At present, some legal norms of these behaviors can be classified as anti-monopoly law, such as monopolistic behavior and low-price sales behavior. Some need separate legislation, such as false advertising, infringement of other people's business secrets and false bidding; Some of them can be classified as tort laws to be promulgated in the future, such as acts against goodwill. But it depends on the specific problem. For example, the French intellectual property law has made special provisions on the abuse of litigation rights against the goodwill of intellectual property owners, and the general abuse of litigation rights can be stipulated in the civil procedure law.
From the above analysis, it can be seen that the contents stipulated in China's Anti-Unfair Competition Law can generally be classified into other laws. With the continuous improvement of China's laws, is there any need for anti-unfair competition law? It should be said that it is still necessary, and it should be improved through the revision of this law, because unfair competition behaviors that are not regulated by other laws at present can be taken over and placed in the Anti-Unfair Competition Law to reduce the legislative cost. Moreover, there are many acts of unfair competition, which cannot be put into other laws. It must be regulated by separate legislation. Japan, Germany and other countries have adopted the dual legislative structure of "Anti-unfair Competition Law" and "Anti-monopoly Law" respectively. Australian, Hungarian and Taiwan Province Province of China combined anti-monopoly and anti-unfair competition legislation into one, adopting a unitary legislative structure, while China adopted a dual legislative structure.
The current anti-unfair competition law in China mainly has the following problems:
First, the legislative orientation is flawed, and it is not clear whether it is public law or private law.
Generally speaking, anti-unfair competition law focuses on the nature of public law, especially administrative law. For example, the administrative law enforcement and legal responsibilities of supervision and inspection departments are stipulated, and most of them stipulate administrative responsibilities such as criminal responsibility and fines, but only Article 20 of this Law simply stipulates the private law relief responsibility that cannot be implemented at all. However, judging from the contents of the law, most unfair competition behaviors are mainly that enterprises gain the competitive advantage of others by means of counterfeiting, false advertising and stealing trade secrets. , are a kind of infringement on the operators in the same industry, mainly damaging private interests, but also involving the interests of consumers, that is, public interests. Therefore, the anti-unfair competition law is mainly based on private law, supplemented by public law, and embodied in legal responsibility.
The United States and other case law countries mainly apply tort relations to unfair competition through case law, that is, private law relations. On the contrary, the anti-monopoly law mainly protects the public interests, often stops monopolistic behavior through administrative procedures, and even punishes monopolistic behavior with penalties, but it also involves the interests of individual operators, such as compensation for individuals, so the anti-monopoly law is based on public law, supplemented by private law.
Generally speaking, anti-monopoly law belongs to the category of public law, mainly to maintain the market structure of free competition and fair competition mechanism; Anti-unfair competition law belongs to the category of private law, mainly to safeguard business ethics and protect the legitimate rights and interests of operators. Anti-monopoly legislation and law enforcement are macroscopic and policy-oriented, while anti-unfair competition legislation and law enforcement belong to the microscopic field, which is limited to operators or consumers.
Second, the stipulated misconduct is chaotic, incomplete and unclear.
The first is the confusion of unfair behaviors, but some monopolistic behaviors are defined as unfair competition behaviors. Such as some acts in Articles 6 and 7 of the Anti-Unfair Competition Law, the Anti-Monopoly Law should be applied;
Secondly, the prescribed anti-improper behavior is incomplete.
In foreign countries, unfair competition is famous for its extensiveness and uncertainty. However, China's current Anti-Unfair Competition Law only stipulates 1 1 kinds of unfair competition according to the situation of unfair competition in the economic field at that time, which leads to many new unfair competition behaviors that cannot be included in the adjustment scope of the current law. The definition of 1 1 acts of unfair competition also limits the role of anti-unfair competition law as the backing law of trademark, patent and copyright law. Illegal acts that cannot be controlled by trademark, patent and copyright laws are dealt with by anti-unfair competition law. Many countries generally stipulate anti-unfair competition separately in trademark, patent and copyright laws, but there is no such provision in our corresponding laws. Zheng Zeng, a well-known intellectual property expert in China, once said: "The provisions on improper behavior of intellectual property rights are additional protection for intellectual property rights. For example, article 10 of China's Anti-Unfair Competition Law provides broader protection for inventions that cannot be protected by the patent law, but it is still weak. There is no corresponding regulation on how to provide broader protection outside the copyright law. "
The Anti-Unfair Competition Law should have protected commercial acts that violate honesty and credit, and these acts are not controlled by the Trademark Law. Taking counterfeiting the registered trademark of others as an example of unfair competition is neither the object of adjustment of the trademark law nor the scope of application of the anti-unfair competition law, thus affecting the legal effect of the anti-unfair competition law. At the same time, among the 1 1 acts of unfair competition, many acts are not clear. How to call them "well-known commodities"? What is a unique name, packaging and decoration? What does it mean to confuse other people's well-known goods and make buyers mistake them for well-known goods? What is misleading false propaganda? Wait a minute. These provisions are simple and vague, that is, they can not guide the behavior of the actor, nor can they guide the law enforcement agencies to correctly enforce the law, let alone guide the court to judge the case.
Third, the legal responsibility is not clear. The Anti-Unfair Competition Law focuses on administrative responsibility and criminal responsibility, and basically does not stipulate the private law responsibility for compensation, and this law is supplemented by private law, which makes the legal responsibility of this law put the cart before the horse and is not conducive to the regulation of unfair behavior.
For example, the law lists acts such as selling below cost, tying, and commercial slander as acts of unfair competition, but it does not stipulate corresponding punishment measures, which makes it impossible to investigate the legal responsibility of these illegal acts. The law only stipulates some acts of unfair competition and orders them to stop illegal acts, with a maximum fine of100000 yuan or 200000 yuan, but it does not stipulate the confiscation of illegal income and illegal property, which makes some operators willing to accept fines in order to obtain high profits.
According to the amount of fines imposed on those who violate the unfair competition law, it is also difficult to cover all illegal acts.
In practice, for various reasons, such as deliberately selling at a low price to escape the blow, or indeed because of poor management, violators are unprofitable or even lose money; In some cases, during the investigation, the violator failed to provide evidence for calculating the illegal income, such as purchase and sale invoices, cost accounting and sales price, which made it difficult for the administrative department for industry and commerce to verify and calculate the illegal income. After the promulgation of the Interpretation, the basis for calculating fines based on the amount of illegal business operations has been increased, which not only increases the legal responsibility for investigating illegal acts, but also is relatively simple and easy to operate.
Fourth, the law enforcement effect is not ideal.
Due to the above-mentioned defects of the law itself, illegal phenomena have increased, but law enforcement personnel and judicial personnel cannot accurately enforce the law.
The Anti-Unfair Competition Law has not played its due legal effect since it was promulgated for more than ten years. In a sense, it is a piece of law that is still naive because of the development of the times.
What does the interpretation include?
Article *** 19 of the Interpretation covers the provisions of Articles 5, 9, 10 and 14 of the Anti-Unfair Competition Law, and defines the criteria for judging unfair competition behaviors such as approaching famous brands, making false propaganda and infringing trade secrets. This is also the first one released by the Supreme People's Court. Mainly reflected in the following contents: First, Article 1 ~ 7 of the Interpretation is a supplement and explanation to Article 5 of the Anti-Unfair Competition Law, which provides a legal basis for how to regulate the phenomenon of brand-name juxtaposition in the current market.
Article 1 of the Interpretation stipulates the connotation of "well-known commodities" as stipulated in the second paragraph of Article 5 of the Anti-Unfair Competition Law; Article 5 (2) The plaintiff shall bear the burden of proof and the applicable exception. For example, using the unique name, packaging and decoration of the same or similar well-known goods in different geographical areas does not constitute unfair competition as stipulated in Item (2) of Article 5 of the Anti-Unfair Competition Law if the user can prove that it is used in good faith.
Article 2 of the Interpretation, in the form of enumeration, stipulates the contents of "unique name, packaging and decoration" as stipulated in Item (2) of Article 5 of the Anti-Unfair Competition Law.
Article 3 of the Interpretation stipulates the connotation of "decoration" as stipulated in paragraph 2 of Article 5 of the Anti-Unfair Competition Law.
Article 4 of the Interpretation stipulates that the second paragraph of Article 5 of the Anti-Unfair Competition Law stipulates that "it causes confusion with other people's well-known commodities, so that buyers mistakenly think that it is the well-known commodity".
Article 5 of the Interpretation stipulates that the name, packaging and decoration of goods belong to the marks that cannot be used as trademarks as stipulated in the first paragraph of Article 10 of the Trademark Law, and the people's court shall not support the request for protection by the parties according to the second paragraph of Article 5 of the Anti-Unfair Competition Law.
Article 6 of the Interpretation stipulates the meanings of "enterprise name" and "name" as stipulated in Item (3) of Article 5 of the Anti-Unfair Competition Law.
Article 7 of the Interpretation stipulates the meaning of "use" as stipulated in Item (2) and Item (3) of Article 5 of the Anti-Unfair Competition Law.
The second is Article 8 in the Interpretation, which explains the false claims in product promotion in Article 9 of the Anti-Unfair Competition Law.
Article 8 of the Interpretation stipulates the meaning of "misleading false propaganda" as stipulated in the first paragraph of Article 9 of the Anti-Unfair Competition Law.
Third, Article 8~ 17 of the Interpretation explains and expands the content of Article 10 of the Anti-Unfair Competition Law, which is "infringement of trade secrets".
Article 9, 10 and1of the Interpretation respectively stipulate the meanings of "unknown to the public", "practical" and "confidentiality measures" as stipulated in the third paragraph of Article 10 of the Anti-Unfair Competition Law.
Article 12 of the Interpretation stipulates that trade secrets obtained through self-development or reverse engineering are not recognized as acts of infringing trade secrets as stipulated in Item (1) and Item (2) of Article 10 of the Anti-Unfair Competition Law, and defines reverse engineering.
Article 13 of the Interpretation explains the meaning of "customer list", which stipulates that employees shall conduct business with their original customers after leaving their jobs without infringing on trade secrets.
Article 14 of the Interpretation stipulates the burden of proof and evidence requirements for cases of infringement of trade secrets.
Article 15 of the Interpretation stipulates the elements of the plaintiff's infringement of trade secrets.
Article 16 of the Interpretation stipulates the determination of "the time to stop infringing on trade secrets".
Article 17 of the Interpretation stipulates the compensation standard for infringement of trade secrets.
Fourthly, Article 18 of the Interpretation stipulates the general court-level jurisdiction and exceptions of civil first-instance cases of unfair competition stipulated in Articles 5, 9, 10 and 14 of the Anti-Unfair Competition Law.
The promulgation of the Interpretation is equivalent to additional protection of intellectual property rights.
Judging from the content of the Interpretation, it mainly explains and expands the provisions related to intellectual property rights in the Anti-Unfair Competition Law, that is, accurately defines the definition of anti-unfair behavior, civil compensation standards and legal responsibilities. There are many improper behaviors in China's domestic market, such as brand name, false propaganda, infringement of trade secrets and infringement of intellectual property goodwill, which all occur in the field of intellectual property. However, these acts are not stipulated in China's current relevant intellectual property laws, but are generally stipulated in foreign intellectual property laws, but there are irregular provisions in China's Anti-Unfair Competition Law, but the provisions are too principled to guide specific acts and judicial practice.
Before China's relevant intellectual property laws were revised and improved and the Anti-Unfair Competition Law was revised, the Interpretation undoubtedly provided timely and important additional protection for a large number of serious intellectual property violations in the current market. For example, in recent two years, some foreign intellectual property owners have infringed on the goodwill of business operators in China by publishing infringement statements in newspapers, sending infringement letters to customers, and abusing litigation rights. Because the provisions of Article 14 of China's Anti-Unfair Competition Law are not clear, and there is no clear legal liability such as civil compensation, this article is invalid. However, this explanation does not provide for this, which is a pity.
It can be seen that the explanation only partially makes up for the defects of the anti-unfair competition law, and the anti-unfair competition law must be completely revised if it really plays its due role.