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2022-03-17 15:12:00   来源:   评论:0 点击:

Today, the "Interpretation of the Supreme People& 39;s Court on Several Issues Concerning the Application of the A
Today, the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China" (hereinafter referred to as the "Interpretation") was released, which will come into force on March 20, 2022. The Interpretation has a total of 29 articles. According to the revised Anti-Unfair Competition Law, it has made detailed provisions on issues such as Article 2 of the Anti-Unfair Competition Law, counterfeiting and confusion, false propaganda, and online unfair competition.
 
Compared with the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China (Draft for Comments)" (hereinafter referred to as the "Draft for Comments"), the number of articles has been shortened by 5, which is obviously "moderate". Many, leaving room for market self-regulation and technological innovation.
 
01 Clarified the scope of application of Article 2 of the Anti-Unfair Competition Law
 
First of all, the Interpretation once again clarifies the protection pattern of the superimposed consideration of the "ternary interests", that is, operators disrupt the order of market competition and damage the legitimate rights and interests of other operators or consumers;
 
Secondly, the Interpretation clarifies the applicable relationship between general clauses and specific conduct clauses, as well as the provisions of special intellectual property laws, and also clarifies the application status of general clauses to other special intellectual property laws such as the Anti-Unfair Competition Law and the Trademark Law.
 
Third, according to Article 3 of the Interpretation, the "business ethics" in the Anti-Unfair Competition Law cannot simply be equated with everyday ethical standards, but should be a code of conduct that is generally followed and recognized in specific business fields. The "Interpretation" stipulates that reference may be made to professional norms, technical norms, self-discipline conventions, etc. formulated by industry competent authorities, industry associations or self-regulatory organizations.
 
Fourth, compared with the "Exposure Draft for Comments", the expression of "clearly enumerated acts" has been removed, which means that the vague expression of "small pocket clauses" in Chapter II of the Anti-Unfair Competition Law is also applicable, and is reserved for judicial practice. space.
 
02 Focused on refining the provisions on "counterfeiting and confusion" in Article 6 of the Anti-Unfair Competition Law
 
First, Article 4 of the Interpretation clarifies the meaning of the mark with “certain influence” and the factors to be considered. It has a certain market reputation and has a distinctive feature that distinguishes the source of the goods, both of which are indispensable.
 
Secondly, to have a certain market reputation, it is necessary to consider factors such as the degree of knowledge of the relevant public in China, and it is clarified that there is a difference in consideration of domestic and overseas reputation.
 
Fifth, descriptive and indicative signs are not protected, which corresponds to the provisions of Article 11 of the Trademark Law, and echoes social hotspots such as the "green pepper" case.
 
Sixth, Article 7 of the Interpretation makes it clear that signs that are prohibited by the Trademark Law cannot be protected by the Anti-Unfair Competition Law, which corresponds to the provisions of Paragraph 1 of Article 10 of the Trademark Law.
 
Seventh, with reference to the provisions of Article 2 of the Regulations on the Administration of Registration of Market Entities, the scope of market entities whose names can be protected is refined. Compared with the "Exposure Draft for Interpretation", the names of farmers' professional cooperatives (associations) and other market entities (including abbreviations, trade names, etc.) stipulated by laws and administrative regulations have been added.
 
Eighth, it is worth noting that the "Interpretation" deletes the provisions on "good faith use" in Article 15 of the "Exposure Draft for Comments", and it is worth observing what impact it will have in practice.
 
Attachment: Article 15 of the "Exposure Draft for Comments" uses the same or similar logos such as commodity names, packaging, decoration, enterprise names, social organization names, names, etc. with certain influence in different geographical scopes, and users can prove it later. If it is used in good faith, it does not constitute an act of unfair competition as specified in Items 1 and 2 of Article 6 of the Anti-Unfair Competition Law.
 
For the "good faith use" mentioned in the preceding paragraph, the people's court shall, in light of the specific circumstances of the case, comprehensively consider factors such as the market popularity of the prior use of the logo, the knowledge of the prior use, and the region where the logo is used.
 
The people's court shall support the request of the prior user to order the later user to attach other marks sufficient to distinguish the source of the commodity because the subsequent business activities have entered the same geographical scope, which is enough to cause confusion about the source of the commodity.
 
03 Refined the meaning of "false propaganda" in Article 8 of the "Anti-Unfair Competition Law" and the factors to be considered
 
First, Article 16 of the Interpretation elaborates the meaning of "false propaganda", Article 17 details the factors to be considered for determination, and Article 18 stipulates the burden of proof for claiming losses.
 
Secondly, the "Interpretation" deletes the provisions on "exemption" in Article 17, paragraph 2 and Article 18, paragraph 2, of the Interpretation Draft, which means that the content of commercial publicity is prohibited from lacking authenticity and obvious exaggeration. It is worth observing what kind of impact it will have in practice.
 
Attachment: Although the content of commercial publicity in Paragraph 2 of Article 17 of the Interpretation Draft lacks authenticity, it is not enough to cause misunderstanding by the relevant public. Commercial propaganda shall not be supported by the people's court in accordance with the law.
 
Article 18, Paragraph 2 of the "Exposure Draft for Comments": Propagating commodities in an obviously exaggerated manner, which is not sufficient to cause misunderstanding by the relevant public, is not a misleading commercial propaganda act.
 
04 The "Internet Special Article" in Article 12 of the "Anti-Unfair Competition Law" does not further enumerate new behaviors, leaving room for market self-regulation and technological innovation
 
First of all, the person in charge of the Third Civil Division of the Supreme People's Court pointed out in answering reporters' questions about the Interpretation that, considering the characteristics of the rapid update and development of technology and business models in the Internet industry, Articles 21 and 22 of the Interpretation Instead of further enumerating new behaviors, it strictly grasps the spirit of legislation and competition policy, summarizes judicial practice experience in a timely manner, and makes appropriate refinements to the application of laws to provide necessary rule guidance for judicial adjudication, and at the same time for market self-regulation and technological innovation. Leave space.
 
Secondly, the Interpretation deletes Articles 23, 24, 25 and 26 of the Draft Interpretation, which were once considered to be part of the Draft Interpretation. Highlights, the "Interpretation" officially announced this time has been deleted, which can be understood as the Supreme People's Court's cautious attitude towards the "Internet Special Article".
 
Attachment: Article 23 of the "Exposure Draft for Comments": Operators maliciously interfere with or destroy the networks legally provided by other operators by misleading, deceiving, forcing users to modify, close, uninstall, etc. Products or services, the people's court shall determine in accordance with Article 12, Paragraph 2, Item 2 of the Anti-Unfair Competition Law.
 
Article 24 Where an operator's incompatible behavior meets the following conditions at the same time, the people's court shall determine it as "malicious incompatibility" as prescribed in item 3, paragraph 2, Article 12 of the Anti-Unfair Competition Law:
 
(1) Implementing incompatibility against other specific operators;
 
(2) Obstructing users from normal use of network products or services legally provided by other operators;
 
(3) Other operators cannot eliminate the impact of incompatible behaviors by cooperating with third parties;
 
(4) There is no reasonable reason.
 
Article 25 Where a business operator uses the Internet to engage in production and business activities and meets the following conditions at the same time, the people's court may determine it in accordance with Article 12, Paragraph 2, Item 4 of the Anti-Unfair Competition Law:
 
(1) Implemented by means of network technology;
 
(2) Going against the wishes of other operators and causing the network products or services legally provided by them to fail to operate normally;
 
(3) It is contrary to the principle of good faith and business ethics;
 
(4) Disrupting the market competition order and harming the legitimate rights and interests of consumers;
 
(5) There is no reasonable reason.
 
Article 26 An operator violates the principle of good faith and business ethics, and arbitrarily uses the data collected by other operators with the consent of users and has commercial value, which is sufficient to substantially replace the relevant products or services provided by other operators, damages In the case of a fair competition market order, the people's court may determine it in accordance with Article 12, Paragraph 2, Item 4 of the Anti-Unfair Competition Law.
 
The operator obtains the consent of the user to legally and appropriately use the data controlled by other operators, and there is no evidence to prove that the use may damage the market order of fair competition and the legitimate rights and interests of consumers. The operator who controls the data claims that it falls under the Anti-Unfair Competition Law The people's court shall generally not support the conduct specified in Article 12, paragraph 2, item 4.

Author: Qin Peng

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