Anti-Unfair Competition Law Research Articles

Consideration on the Path of Non- original Database Rights Protection

In the current civil and commercial cases involving disputes over the ownership of data, judges tend to use the Anti-unfair Competition Law to regulate and protect the property rights and interests of databases. However, due to the limited scope of adjustment, incomprehensive protection, and other defects of the Anti-unfair Competition Law, the Anti-unfair Competition Law is not sufficient to regulate database rights and interests. In response, the Western countries have adopted special Database Protection Directive which has been transformed into a special protection for databases. There is also a new model of protection under patent laws. In the era of the booming development of big data, the problem of database rights and interests protection urgently needs a more comprehensive legislative solution.

Consideration of Consumers' Interests in the Application of Article 12 of the Anti-Unfair Competition Law

In Article 2 of the latest revision of the Anti-Unfair Competition Law, the definition of unfair competition includes "harming consumers' interests". In the Internet context, the position of consideration of consumers' interests is more complex, and there are often different conclusions from different perspectives. For example, some conducts that seem to be beneficial to consumers in the short run, will ultimately harm consumers' interests in the long run. The consideration of consumers' interests should be based on an independent status and a dynamic approach.

Anti-Unfair Competition Law Protection of Internet Enterprise Data in China

Anti-Unfair Competition Law Protection of Internet Enterprise Data in China

중국의 악의적 상표권자 청구권 제한에 관한 연구 - 플랫폼 환경에서의 실효적 방안 모색 -

Recently, there has been an increasing number of acts to obtain financial benefits by claiming damages by using registered trademark rights preoccupy in bad faith in China. Regarding the principle of trademark protection, China is adopting the principle of registration. In other words, anyone can apply for a trademark with the Trademark Office of China National Intellectual Property Administration(CNIPA). It can be protected by the China Trademark Law when passed an examination. In the non-substantive examination process, the trademark office does not examine whether the trademark applied for is a trademark used by others first. Only the application for trademark registration is reviewed. Therefore, a trademark applicant can preferentially register a trademark that is being used by others without registration. Also, a holder of trademark right who registered a trademark in bad faith in advance may claim that the right has been infringed. In the process of resolving intellectual property disputes and conflicts between the United States and China, the Chinese authorities strengthened the rights of trademark holders. Administrative measures to stop infringing trademark rights continued. Through this series of measures, a social atmosphere was created that it is natural for trademark holders to take remedies for infringement. These things caused the incident which is preoccupying trademark in bad faith. In addition, in the third revision of the China Trademark Law implemented in 2013, legislation to strengthen civil remedies for trademark holders was in progress, such as adopting a punitive damage award. Accordingly, applications for preoccupying trademark in bad faith aimed at financial gain are accelerating. Because of this situation, the Chinese legislative body carried out the fourth revision to ban such actions at the source through legal regulations and to strengthen punishment for them. Through this revision, a legal basis has been prepared to prevent the abuse of civil remedies in advance. In addition, there are cases that restrict the claims of trademark holders by applying the principle of good faith. And above all, the platform business is revitalized due to digital transformation, as a result, various forms of trademark infringement appear. For this reason, in addition to the China Trademark Law, measures to restrict using the China Anti-Unfair Competition Law and the China E-commerce Law are being actively used. Korea is also faced the task of effective trademark protection in the era of the 4th industrial revolution. Therefore, in this article, provisions and major precedents related to the limitation of trademark holders' claims were analyzed for implications to legislate related provisions in Korea.

Research on the dilemma and improvement of legal regulation for unfair competition related to corporate data in China

Corporate data disputes have been rising rapidly in recent years in China. Courts typically apply the trade secret clause, the Internet clause, and the general clause under the Anti-Unfair Competition Law of PRC to the disputes. However, there are some limitations and problems, including the limited scope of the trade secret clause, the difficulty in interpretation of the Internet clause, and short of sufficient demonstration of the general clause, all leading to the lack of clear rules and guidelines for solving corporate data competition issue. The property nature of corporate data and the business operators’ factual control of the data necessarily require standard legal protection. Corporate data is not the property right, but the property interest protected under the Anti-Unfair Competition Law. For further legal positioning of the corporate data, the paper refers to the trade secret clause’s legislative principles. The paper also learns from the United States and Japan that both information misappropriation rule and newly established ‘shared data with limited access’ provision protect corporate data under their anti-unfair competition law. The paper concludes by providing judicial and legislative suggestions to pave the way for corporate data protection in China. At the judicial level, Chinese courts should clarify the specific application conditions of the general clause. At the legislative level, enacting new legislation ‘data clause’ into the Anti-Unfair Competition Law is necessary to regulate unfair competition behaviors related to corporate data.

The reform of passing off in Chinese Law: effects of the 2017 revision of the Anti-Unfair Competition Law

Confusion, or passing off, is a typical unfair practice recognized internationally, but national laws still differ from each other. Although the Chinese Anti-Unfair Competition Law of 1993 provided a narrow rule on passing off, a rich amount of case law has considerably enlarged its scope of application. The reform of the passing off regime in 2017 was essentially based on case law. This reform consists of four main aspects: expansion of the scope of protectable commercial signs: clarification of the applicability of the passing off rule to registered and unregistered trademarks; the adjustment of fame as a qualifying condition of passing off; and the adoption of a general rule prohibiting confusion. This reform has not only consolidated the case law and approach developed by the courts, but also bestowed an open and flexible spirit in the passing off regime which will enhance its efficiency in the fight against unfair imitation. *PhD (University of Paris I – Pantheon Sorbonne), LLM (Renmin University of China), LLB (Shandong University), Director of the Innovation & Competition Law Center, Former Vice-President of the Trademark & Unfair Competition Committee of the IP Case Law Center (Beijing) of the Chinese Supreme People's Court, Vice President of the Beijing IP Judicial Protection Association, Expert Council Member of China Trademark Association, Co-Chair of American Society of International Law Intellectual Property Interest Group, Visiting Professor or Research Fellow (University of Milan, University of Toulouse I, University of Paris I, University of Paris XI, Max Plank Institute for Procedural Law and Strasbourg University CEIPI). The author is thankful to Miss Kristina DaCosta (LLM graduate of Tsinghua University), Miss Ling Zhang (PhD candidate of Tsinghua University) and Mr Yu Huang (LLM graduate of Tsinghua University) for their valuable assistance in this research. This research is part of the project 20BFX142 of the National Social Science Fund of China.

Unfair Competition in the Field of Intellectual Property Rights: Analyzing Concepts, Acts of Unfair Competition and Laws

This study aims to analyze Unfair Competition in the field of Intellectual property rights. This research seeks to explore and show how the concept of unfair Competition interferes in the area of intellectual property rights. Furthermore, we have investigated how competition law and intellectual property rights interfere with each other. The research evaluates unfair competition practices in the scope of intellectual property rights, referring to specific international laws directly related to each course. Finally, it examines the regulatory system that governs these sectors. Reference is made particularly to the Chinese Anti-Unfair Competition Law and other international laws on trademark practices. As far as the study's methodology is concerned, qualitative data analysis is applicable alongside with comparative legal method for analyzing "de lege lata" and "de lege feranda" situations in a range of the concluded topic. The study finds out that Unfair Competition in the domain of Intellectual Property rights involves actions by an operator that infringe the legislation's rules, harm operators' legitimate rights and interest on the market, thereby threatening socio-economic order. The study concluded that Unfair Competition acts in the field of Intellectual Property rights (like Industrial espionage, infringement of trade secrets, trademark infringement) impede innovation, stifle, and affect Competition in the real market. And the occurrence of these Unfair Competition practices is common, even though there are existing legal frameworks that regulate this sector. The research reveals an international regulatory system such as the Paris Convention 1883, the Patent Act 1977, and the Espionage Act 1996 have specific and statutory laws that target unfair competition practices. The Chinese Anti-Unfair Competition Act 1993 forbids unfair Competition in intellectual property rights and defends operators and citizens from unfair competition practices. The study also deduces that the existing legal framework regulating this sector is practical to a small extent because these Unfair Competition Practices are still very much detectable in the trade sector. As most legal frameworks dwell on civil liabilities instead of criminal penalties, operators can easily violate the law by relying on whether they can afford the civil penalties. There are recent amendments to adjust and adapt to the evolution of patterns and daily market innovations (Example: Amendment of the Chinese Anti-Unfair Competition Law in 2003). We concluded the study by bringing in suggestions and recommendations. Qualitative research methodology applies to the following article.

Protecting Product Designs through Design Patents and Copyright Law in China

This paper argues that a designer with product designs in China, should obtain multiple protections through the intellectual property rights and related laws. This paper focuses on a specific aspect of Chinese intellectual property law related to design protection: design patents and copyright law. It aims to introduce the current legal framework of the Chinese Patent Law and Copyright Law and highlight the different standards in the protection of design patents, artistic works and works of applied art through real cases. Additionally, the paper evaluates and compares design patent protection and copyright protection in various areas, such as protectable subject matter, terms of protection, and infringement determination. This paper also explains that dual protection for a single product design is reasonable under both the Patent Law and Copyright because no evidence shows that Chinese law prohibits such protection. Ultimately, the Anti-Unfair Competition Law is likely to offer residual protection for product designs with “well-known” status. Therefore, the multiple protections provided by design patents, copyright law and unfair competition law are justified.

Research on Legal Protection of Geographical Indications

With the development of the times, geographical indications have more and more influence on a country’s economy and culture. As a big country of geographical indication resources, China should make use of the benefits of geographical indications to promote economic and cultural development. However, due to the mixed legislative mode of Trademark Act, which includes TrademarkAct,Regulations on the protection of geographical indications andAdministrative measuresfor geographical indications of agricultural products, there are conflicts and confusion in the legal provisions, which is not conducive to the development of geographical indications in China. This paper discusses the protection mode of geographical indications in European Union, the United States and other countries, analyzes the advantages and disadvantages of special law protection, Trademark Act protection and anti-unfair competition law protection mode, and puts forward suggestions that China should adopt special law protection to make better use of China’s rich geographical indication resources in the way of strong protection.

The right of publicity in Chinese Law? A comment on the Michael Jeffrey Jordan case and comparative analysis with the US, UK, Germany, and the Asia Pacific

In Michael Jeffery Jordan v Chinese Trademark Review and Adjudication Board, the Supreme People's Court (SPC) set a precedent for foreign companies and celebrities enforcing their rights of publicity against malicious trademark registration in China. This article introduces the legal grounds of the SPC's deliberations on Jordan's claims and responds to the critiques of most Chinese commentators in the field of civil law. Deeply influenced by German law, mainland China's legal system strictly distinguishes between personality rights and property rights. Comparative analysis with the US, Germany, Japan, and Hong Kong indicates that different legal civilizations have developed different approaches to position the right of publicity logically in their legal systems. The Jordan decision indicates that the ‘right of the name’ is a prior right provided in Article 32 of the Trademark Law of the PRC. This article contends that the ‘right of the name’ as provided in the Chinese Anti-Unfair Competition Law differs from the ‘right of the name’ articulated in Article 110 of the General Principles of Civil Law (2017). The former concerns the commercial interest and property aspects of a celebrity's name, which is fairly similar to the right of publicity, while the latter regards the personality right. The further development of the right of publicity protection relies in mainland China on a consistent judicial practice.

Judicial judgment of ‘Malicious Incompatibility’: based on the study of Chinese judicial practice

How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.

Implications of the China–US trade agreement on the civil protection of trade secrets in China: is it a game changer?

ABSTRACT China and the United States (US) signed the China–US trade agreement in early 2020 as a means to pause trade tensions between these two large economies. The protection of trade secrets is a priority issue that the trade agreement aims to address. In this regard, the current article examines the implications of the China–US trade agreement in relation to civil protection of trade secrets in China. This article first analyses the traditional civil protection method of trade secrets in China, which relies on the European approach of anti-unfair competition law. It then decodes several different and improved protection measures for trade secrets provided in the China–US trade agreement. Lastly, this article identifies some implications of the trade agreement for China’s legal practices. China has amended its Anti-Unfair Competition Law and enacted relevant judicial interpretations regarding preliminary injunctions in an endeavour to fulfil its commitments. Arguably, according to provisions in the China–US trade agreement, the protection of trade secrets in China faces a game changer from the traditional unfair-competition approach to the intellectual property approach. Additionally, the authors of this article believe that China’s current provisions in the Anti-Unfair Competition Law are not sufficient. Rather, China needs to enact a standalone trade secret law containing provisions of trade secret protection and the legal use of trade secrets.

Rethinking and Restructuring of the Rational Way of Data Sharing in Digital Economy: From the Perspective of Data Typing

The rapid development of digital economy in China has created a miracle of economic growth, at the same time, it also raises many legal problems. The economic rule of law is especially prominent. In essence, it involves the identification and attribution of various types of rights and interests related to data, as well as the justification of protection and the appropriateness of protection. China’s current judiciary and legislation pay enough attention to the core issues in the development of digital economy, data confirmation and protection, which provides a good system and operation environment for promoting the development of digital economy. At present, although the existing system design and practice in China, and related theoretical research results show that the relationship and the implementation between data protection and data sharing can be developed in accordance with the logic of private law that is universally applicable, which includes establishing the ownership of each type of data and practicing the private right logic of “behavior-legal interest” judgment based on tort liability law, intellectual property law and anti-unfair competition law. However, the existing research results and legal practice still show a relatively single and solidified state and mode, which fails to flexibly and effectively adapt to the real needs of mass and diversified data circulation and sharing under digital economy.With the rapid development of Internet platform economy and new business forms, the collection, storage, analysis and use of massive data by platform enterprises have brought challenges to the current legal system of market regulation, including improper collection and excessive collection of user data, and improper or illegal restrictions on the use of data by users and/or third party operators. Therefore, the promotion of data sharing has become the current digital economy in the development process of the urgent response to the practical requirements. To realize data sharing and ensure the synchronization of data protection and data sharing is not only an internal requirement of data operation law, but also an external demand to maintain the high-quality development of digital economy. High level of data protection is the only way to achieve efficient data sharing; at the time of realizing efficient data sharing, the construction of high level of data protection will be continuously stimulated. Therefore, under the guidance of the data sharing principle of “differentiated and equal”, the ownership structure based on “dynamic compatibility rights” is established. Different types of data can carry different subjects’ interest demands, while the same type of data can also carry different subjects’ interest demands. In this way, we can bridge the “high cost, low efficiency” of data sharing brought by the construction of private right model with static exclusive right as the core under the perspective of private law, and even bring the defects of potential anti-competitive risks.

Personal Data Rights in the Era of Big Data

Personal data rights in the era of big data involve coordination of the protection of civil rights and interests of natural persons on the one hand and the freedom of data companies’ data activities on the other. Personal data can be the object of civil rights and as such should be regulated and protected through the system of private rights. The right of natural persons to personal data is aimed at protecting their self-determination interests in relation to those data and thus preventing the infringement of existing personal and property rights due to the illegal collection and use of personal data. Unlike real right, the right of natural persons to personal data is not an absolute right that can be positively employed; it is protected by tort law only if its infringement leads to the infringement of other civil rights. Data companies’ right to personal data derives from their factual actions in legally collecting, storing and paying for these data. The data rights of data companies are a new type of property right. Their protection cannot be left solely to anti-unfair competition law; rather, they should receive systematic protection as absolute rights.

On Intellectual Property Right Protection of Hyperlinks Infringement in China

Hyperlink technology is an important technology for the dissemination of information in era of internet. With the rapid development of the network economy, various types of hyperlink technology are applied more frequently. Website operators also pay more attention to the ownership of their own network information resources and the protection of commercial interests. From the point of view of the protection of hyperlink technology, it has been regarded as an intellectual property right. Therefore, starting from different types of hyperlink technology and combining with the existing Copyright Law, Trademark Law and Anti-Unfair Competition Law, this paper reiterates the principles and standards of liability fixation for hyperlink infringement, which can provide countermeasures for website operators to resolve related infringement disputes.

Insights of China’s Competition Law and its Enforcement: the Structural Reform of Anti-Monopoly Authority and the Amended Anti-Unfair Competition Law

Insights of China’s Competition Law and its Enforcement: the Structural Reform of Anti-Monopoly Authority and the Amended Anti-Unfair Competition Law

The New Anti-Unfair Competition Law of the People’s Republic of China 2018

As one of the most important legal frameworks of the modern market economy, unfair competition law must continuously adapt itself to the diversity of the economic and social reality. It is therefore surprising that the first Chinese unfair competition law, enacted in 1993, has remained in force for more than two decades, especially considering that the economic environment in China has undergone sweeping changes in a relatively short period. The new Anti-Unfair Competition Law of the People’s Republic of China (PRC) was enacted on 4 November 2017. After 24 years, the first revision of the Chinese unfair competition law has brought about a complete overhaul. The overlaps with other legal regimes have been reduced, while the internal rigour of the text has been improved. However, the original issues that afflicted the 1993 Law have not all been eliminated.

How to Effectively Curb Internet Malicious Competition—Discussing from Dianping.com v. Baidu Case

Although China’s e-commerce booms in 2017, yet in recent years, Internet malicious competition cases in China have emerged in an endless stream need urgent legal norms. In this article, we would like to make a study on Dianping.com v. Baidu Case applying mainly the Anti-Unfair Competition Law. This article hopes that China’s Internet industry will develop from barbaric growth to standard competition as soon as possible in the future.

A Study on TV format protection in China - Focused on Copyright Law and Anti-Unfair Competition Law -

A Study on TV format protection in China - Focused on Copyright Law and Anti-Unfair Competition Law -

When the Chinese intellectual property system hits 35

In 1982, China promulgated its first modern intellectual property law, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China finally became a member of the WTO, assuming obligations under the TRIPS Agreement. One can certainly debate about the actual age of the modern Chinese intellectual property system, but it will not be too far-fetched to suggest that the system began in the early to mid-1980s and is now entering, or approaching, its middle age. What exactly does a middle-aged Chinese intellectual property system mean? Will the system hit its prime? Or is it about to face a hard-to-predict mid-life crisis? Written for a special issue on 35 years of the Chinese intellectual property system, this article explores what it means for this system to hit 35. It begins by briefly recapturing the three phases of development of the system. In the style of David Copperfield, it discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China and one for the TRIPS Agreement and the global intellectual property community.