Unfair Competition Law Research Articles

Protection of intellectual property rights during the Mobile World Congress

Abstract The Barcelona Mobile World Congress is one of the world’s largest events for the technology industry worldwide. This showcasing of creativity and innovation is also a prime opportunity for legal intellectual property violations to be committed with regard to copyright, trade marks, patents, designs, unfair competition law and advertising laws. In order to guarantee a fast, balanced and effective system of interim protection, the assemblies of commercial court judges of Barcelona and Alicante jointly adopt every year an on-call rapid response protocol. This unique protocol has proven to be a clear example of success in the protection of intellectual property rights on international exhibitions.

불공정무역행위 조사와 부정경쟁행위 조사의 법적 비교

Each subparagraph of Article 4, Paragraph 1 of the Unfair Trade I nvestigation Law stipulates the types of unfair trade practices that a re subject to investigation by the Korea Trade Commission(KTC). Th is includes domestic imports and exports of goods that infringe intel lectual property rights. Infringement of intellectual property rights u nder the Unfair Trade Investigation Act includes infringement of pat ent rights, utility model rights, design rights, trademark rights, copyr ights, and trade secrets, but excludes acts of unfair competition und er the Unfair Competition Law. Separate from the investigation under the Unfair Trade Investigatio n Law, the Unfair Competition Law operates an investigation system for unfair competition practices. It is necessary to compare this wit h the unfair trade practice investigation system of KTC and to study the validity and appropriateness of adding unfair competition practices to the scope of intellectual property infringement, which is the subject of investigation under the Unfair Trade Investigation Law. For this purpose, in this study, first, the investigation system unde r the Unfair Trade Investigation Law and the Unfair Competition La w was comparatively analyzed, and the operation status and current status of each system were investigated and analyzed. Next, by exa mining the current state of the unfair trade practice investigation sy stem and related laws in major overseas countries, we looked at cas es in which unfair competition is included in the target of unfair tr ade investigation abroad. Through this, the feasibility of adding unfa ir competition acts under the Unfair Competition Law to the scope of intellectual property infringement under the Unfair Trade Investig ation Law was legally reviewed, and related considerations were pres ented.

The ACM’s Apple decision: to boldly go where no enforcer has gone before

App stores are at the epicentre of current antitrust enforcement as cases are unfolding across the globe.1 While Google’s Play Store is not insulated from antitrust enforcement, most complaints target Apple’s App Store. The complainants are diverse, but the most vocal among them—including Epic Games, Spotify, and Match Group—have grouped together in the Coalition for App Fairness.2 They have two main grievances. First, Apple reserves to its own App Store the monopoly of app distribution within iOS. Second, developers selling digital content via the App Store must use Apple’s in-app purchase system (IAP), which comes with a 30 per cent fee, and cannot inform users of alternative purchasing possibilities such as the web (‘anti-steering provision’).3 For comparative purposes, two cases are particularly important. First, Epic has tried to break the App Store’s monopoly within iOS. A US judge rejected its monopolization claim but did find Apple’s anti-steering provision in breach of California’s unfair competition law.4 Second, the European Commission (EC) has adopted a statement of objections regarding the mandatory use of IAP and the related anti-steering provision.5 This critique examines the Apple decision of the Dutch Authority for Consumers & Markets (ACM) within that context, focusing on the ACM’s choice for an exploitative rather than an exclusionary theory of harm.

Introduction to the Hungarian Cartel Regulation in the Interwar Period

WWI significantly influenced the development of private and trade law. The regulation of economic law institutions came up as a necessity. To protect the consumers’interests, the state interfered with private law affairs and regulated sharking procedures, unfair competition and cartel law. By taking European regulation results into account, cartel regulation organisations were introduced by the Cartel Act; the most important of them was the Cartel Court. This paper shows the most important steps of the antitrust regulation in Hungary’s special attention to the relevant European cartel regulations.

Limitations of the Freedom of Hyperlinking in the Fields of Copyright Law, Trademark Law and Unfair Competition Law: Is Case-by-case Approach Sufficient?

Although there are no legal regulations in the area of hyperlinking, the issue of the freedom of hyperlinking affect jurisprudence among others in the fields of unfair competition law and intellectual property law. Therefore, there is a need to consider if case-by-case approach is sufficient or special legal regulations in the field of hyperlinking should be created. This work concerns taxonomy of hyperlinks, jurisdictional issues, notion of "making available to new public”, circumvention of access restrictions, issue of advertisement of counterfeit goods, copyright and trademark infringements. Matter of defamation of competitors through hyperlinking is also elaborated in this work. Issues of copyright law, trademark law and unfair competition law are discussed independently in this paper. Therefore, wide range of hyperlinking matters is elaborated in this article. Hence, this is significant source of information and considerations on legal problems in the field of hyperlinking.

Views about Balance of Multiple Interests in the Regulation of Anti Unfair Competition Law on Enterprise Data Crawling

Rapid innovation and widespread application of information and digital technologies encourage the continual growth and reconstruction of classic business models and market operation behaviors. The Internet economy has induced many new sorts of unfair competition while stimulating entrepreneurship and unleashing technological innovation dividends. Data crawling consumes a significant amount of Internet traffic because it is a cost-effective data collection strategy. It not only encourages data sharing, but it also makes unfair competition regulation more difficult. We should pay attention to assessing difficulties from the standpoint of interest concerns in the regulation of data crawling under the Anti-Unfair Competition Law, and completely measure whether it harms the interests of operators, customers, and social public interests. We can also use the method of interest measurement to coordinate the interest relationship in order to keep the competitive order and balance multiple interests.

Juridical Analysis Of Holding State-Owned Enterprises In The View Of Corporate Law And Competition Law

This research aims to analyse the status and Position of subsidiaries company of Holding State-Owned Enterprises and to find out regulate of Holding State-owned Enterprises in the view of Corporate Law and Competition Law. The result showed that Subsidiaries of Holding Stateowned Enterprises have a different status from State-owned Enterprises and have the same position as SOEs in certain aspects. This is based on Article 2A paragraph (7) of Government Regulation No. 72 of 2016, which states that SOEs Holding Subsidiaries are treated the same as SOEs in terms of (1) obtaining government assignments or performing public services; and/or (2) obtaining special State and/or Government policies, including in the management of Natural Resources, with special treatment certain conditions as applied to SOEs. The regulation of SOE holdings, Government Regulation No. 72 of 2016, does not comply with Article 51 Prohibition of Monopolistic Practice and Unfair Competition Law No. 5 of 1999. This is based on the implementation guidelines of Article 51 of Act No. 5 of 1999 State concentration of activities or monopolies cannot be regulated by government regulations, but shall be regulated by law.

Protection of intellectual property from unfair competition by the bodies of the Antimonopoly Committee of Ukraine

The article identifies the nature and forms of unfair competition in the form of misuse of business reputation of the entity, its consequences for the original company, outlines areas of comprehensive counteraction to such violations, reveals their content, mechanisms of protection of infringed intellectual property rights from unfair competition by the bodies of the Antimonopoly Committee of Ukraine are considered.
 It is analyzed that a significant part of violations in the form of unfair competition occurs in the field of intellectual property. However, intellectual property is often the subject of illegal actions by third parties and therefore needs legal protection. The results of intellectual activity can be protected through various options for the protection of intellectual property rights. For example, appropriate measures may be taken to prohibit the illegal use of intellectual property through legislation to protect against unfair competition.
 Unfair competition and intellectual property law are interrelated institutions, as they have one legal nature - the Paris Convention of 1883. This international act established provisions on protection against unfair conferences in terms of protection and protection of unregistered designations. Responding to manifestations of unfair competition is one of the priority tasks for the Antimonopoly Committee of Ukraine.
 The study concluded that the illegal use of intellectual property is usually related to the actions of the entity that could cause confusion about a competitor, its products or activities. Such confusion may result from the violation of exclusive rights to intellectual property and the means of individualization, which may qualify as unfair competition.
 Within the framework of the article, an analysis of cases on the practice of application by the Antimonopoly Committee of Ukraine of the legislation on protection against unfair competition in recent years was carried out.

Historical, Doctrinal, and Policy-Oriented Perspectives on Trade Mark and Unfair Competition Law (Germany)

Historical, Doctrinal, and Policy-Oriented Perspectives on Trade Mark and Unfair Competition Law (Germany)

Comparative Advertising as a Competitive Tool for Advertising Institutions

Advertising is as old as civilization and commerce, today, businesses attract potential customers with appealing business signs, pamphlets, brochures, billboards, radio, Internet and TV communications, and many other advertising tools.[1] Advertising is competitive by nature, if we take a closer look on the Advertising industry, it becomes very noticeable how increasingly comparative advertising is taking place on various types of media, whether on television, social media platforms or even on outdoor billboards and banners. Since Comparative Advertising is seen in our everyday lives, and as it increases, many questions are asked, one important question is: Can you compare the relative qualities of your brand with those of competitors without the infringement of trademark laws or unfair competition laws? In this research paper, we will mention the different approaches of some countries to answer this question, we will also discuss the situation in Egypt and what is the most suitable law to be applied to comparative advertising in Egypt.

Protecting Trade Mark Proprietors Against Unfair Competition in EU Trade Mark Law

With aims of protecting trade mark proprietors against commercial practices of third parties that could hinder the use of the trade mark in informing and attracting customers, negatively influence its selling power, or exploit its attractive force, the EU legislator and the Court of Justice of the EU (CJEU) have broadened the protection afforded under trade mark law to cover such acts. At the same time, the CJEU has sought appropriate balance between the exclusive rights of trade mark proprietors and the interests of third parties, in allowing those practices that can be deemed acceptable as part of fair competition. The author argues that, in consequence, EU trade mark law is becoming ever more an EU law of unfair competition with regard to practices that involve the use of trade marks. The article represents an attempt to explain these developments by looking at specific policy choices and decisions of the CJEU on the protection of trade marks, alongside the wider context of EU law dealing with unfair competition. A key conclusion is that, in light of the lack of harmonisation of unfair competition law in the EU (at least pertaining to practices that affect businesses), the widening of the scope of protection under trade mark law helps to ensure the necessary degree of harmonisation while avoiding a parallel system of protection. When compared to pre-existing EU instruments of unfair competition law that prohibit certain uses of trade marks, this approach provides trade mark proprietors with a more efficient mechanism for enforcing their rights. In the course of elucidating this finding, the article gives the reader an understanding of how EU law addresses the protection of the commercial value of trade marks.

Epic Games v. Apple: A Case Summary

At the heart of the legal battle between Epic Games and Apple is a set of restrictions Apple imposes on app developers. For instance, Apple prohibits the distribution of iOS apps outside of the App Store, which Apple fully controls. Apple similarly requires developers to exclusively use its own in-app payment system for app purchases and in-app purchases for digital content. Through this system, Apple automatically collects a 30% commission on all such transactions. Dissatisfied with these policies, Epic Games tried to use its flagship game Fortnite as leverage to convince Apple to open up its closed platform. After Apple refused, Epic Games violated the App Store rules by enabling its own payment method in the Fortnite iOS app on August 13, 2020. That same day, Apple removed Fortnite from the App Store and Epic Games filed an antitrust suit in a federal district court in California. Apple soon thereafter countersued for breach of contract. A yearlong trial ensued, the result of which is a 185-page decision, which was handed down by Judge Yvonne Gonzalez Rogers on September 10, 2021. This summary condenses the Epic Games v. Apple decision into a six-page overview covering all the main parts of the decision. Part I of the summary covers the findings of fact, which includes the Court’s factual findings on the different product and geographic markets proposed by Epic Games and Apple, on the anticompetitive effects alleged by Epic Games, and on the business justifications put forward by Apple. Part II covers the application of the facts to the law and includes the Court’s legal market definition and market power assessment, its findings under federal antitrust law (Sections 1 and 2 of the Sherman Act) and state antitrust law (California’s Cartwright Act and Unfair Competition Law), and its breach of contract findings.

Criminal Acts of Corruption Procurement of Goods and Services of Local Governments through Electronic Procurement Services (LPSE)

The rapid advancement of technology is seen as one of the right and effective methods to increase the transparency of public information access, by implementing an online system for goods/services procurement or known as Electronic Procurement Services (LPSE). But corruption in the goods/services procurement of the local government continues even though the LPSE has been implemented. The purpose of this research is to knowing legal arrangements, forms of irregularities, and to explain the efforts of Government Internal Supervisory Apparatus (APIP) in preventing corruption in the goods and services procurement of the local government carried out through LPSE The research method used is a qualitative method that is descriptive. The type of juridical research is normative, that is literature study with secondary data types consisting of primary, secondary, tertiary legal materials. The legal arrangements related to the corruption of the public goods/services procurement are regulated in Law No. 31 of 1999 Jo. Law No. 20 of 2001, while the legal arrangements for the public goods/services procurement through LPSE are regulated in Presidential Regulation No. 16 of 2018 Jo. No. 12 of 2021 concerning the Public Procurement Goods/Services. LKPP Regulation as technical guidelines are LKPP Regulation No. 9 of 2018, No. 11 of 2018 Jo. No. 7 of 2020, and No. 14 of 2018. The configuration of irregularities that occur in the public goods/services procurement through LPSE include corruption regulated in Corruption Law, as well as irregularities in the form of administrative irregularities and general crimes, unfair business competition law, and corruption. The efforts of APIP in preventing corruption in the public goods/services procurement is an early warning at every phase of the goods/services procurement and the efforts of LKPP strengthening the Electronic Procurement System (SPSE) by using online-based applications, and law enforcement by firm and fair criminal sanctions to the corruptor in the goods/services procurement in accordance with the applicable corruption law.

Digital Platforms & Economic Dependence in Chile - Any Room for Competition Theories of Harm without Dominance?

Digital platforms may generate economic dependence on their trading partners, with a double effect. Downstream, it may result in the exploitation of weaker parties that cannot compete on an equal footing against bigger ones. Horizontally, economic dependence may raise entry barriers since the platform’s trading partners cannot switch to a different platform without engaging in significant costs, which might result in a lock-in effect. If so, due to the economics of platforms, the market may tend towards tipping scenarios in which one player—the winner—takes the whole market. As already alerted by several reports worldwide, in the digital context, these threats can rapidly become real harms. Against this backdrop and considering that Latin America is witnessing the advent and rapid growth of digital platforms in different markets, this paper explores whether one of this region’s jurisdictions—Chile—is prepared to address these new threats. Considering a distinction between two types of economic power—dominant power and uneven bargaining power—and the effects that economic dependence may generate on the market’s functioning, the paper maps four possible harmful scenarios: dominance with anticompetitive effects; no-dominance without anticompetitive effects; no-dominance with horizontal anticompetitive effects; no-dominance with up/downstream anticompetitive effects. We argue that the Chilean legal framework—i.e., unfair competition law (Law 20.169) and competition law (DL 211)—has sufficient scope to address all but the last scenario. Regarding the latter, a legal modification would be necessary.

The Self-Regulation of Electronic Commerce: An Appraisal in Accordance to the Chilean Law of Unfair Competition

Electronic commerce or e-commerce constitutes a commercial activity on the rise. Although it has many advantages, there are several lingering factors that prevent its consolidation, such as the lack of trust of the potential consumer/user. In order to overcome that obstacle, instruments of self-regulation were created in the field of advertising. Firms that wish to distinguish themselves favorably against their competitors have the option of adopting those instruments, which play a praiseworthy role regarding the target audience and constitutes a considerable improvement of consumer rights. However, on occasions, problems arise in the market when those systems of self-regulation bind third parties that did not voluntarily enter into a contract. This paper tackles the question of if self-regulation of advertising in the net can be put in place should it affects the honor of the third party not committed with the fair-practices document. In this article, we will refer to the particularities that arise from a case concerning the Chilean Law no. 20,168, of 2007, on unfair competition and self-regulation of advertising in the Internet pertaining WOM, Movistar, Entel, Claro and Virgin. The Chilean Law no. 20,168, of 2007 contributes to the goal of discouraging conduct contrary to good faith or good practices in advertising in conjunction with codes of conduct that have been approved in the field related to the systems of self -regulation.

The Self-Regulation of Electronic Commerce: An Appraisal in Accordance to the Chilean Law of Unfair Competition

Purpose – Electronic commerce or e-commerce constitutes a commercial activity on the rise. Although it has many advantages, there are several lingering factors that prevent its consolidation, such as the lack of trust of the potential consumer/user. In order to overcome that obstacle, instruments of self-regulation were created in the field of advertising. Firms that wish to distinguish themselves favorably against their competitors have the option of adopting those instruments, which play a praiseworthy role regarding the target audience and constitutes a considerable improvement of consumer rights. However, on occasions, problems arise in the market when those systems of self-regulation bind third parties that did not voluntarily enter into a contract. This paper tackles the question of if self-regulation of advertising in the net can be put in place should it affects the honor of the third party not committed with the fair-practices document. Methodology/approach/design – In this article, we will refer to the particularities that arise from a case concerning the Chilean Law no. 20,168, of 2007, on unfair competition and self-regulation of advertising in the Internet pertaining WOM, Movistar, Entel, Claro and Virgin. Findings – The Chilean Law no. 20,168, of 2007 contributes to the goal of discouraging conduct contrary to good faith or good practices in advertising in conjunction with codes of conduct that have been approved in the field related to the systems of self -regulation.

The Commission’s vision for Europe’s digital future: proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act—a critical primer

The author discusses the EU Commission’s triad of proposals in the Digital Services Package of Winter 2020, i.e. the proposed Data Governance Act (DGA), Digital Markets Act (DMA) and Digital Services Act (DSA). These bills represent the hitherto most ambitious and broad regulatory project in the field of data and digital services regulation worldwide. While the DGA and DSA are also critically discussed, specific emphasis is paid to the DMA Proposal. This Proposal represents a hybrid approach to specific regulation of gatekeeper platforms, which in substance makes perfect sense. The main desiderata concern the co-ordination with European and national competition law and the introduction of further and more differentiated provisions in the area of enforcement. In fact, this latter aspect is partly linked to the former since e.g. contextual integration in competition law would allow to make use of the European Competition Network under EU Regulation 1/2003 to enforce the DMA Proposal’s provisions and in particular to coordinate EU and national enforcement, based on both, the DMA Proposal and EU or national competition law. Apart from that, a European legal framework for private remedies and enforcement in regard to the obligations laid down in the Proposal seems of paramount importance, since otherwise there is a danger of considerable disharmonization and inefficiency in regard to diverse private remedies according to the different Member States’ respective national contract, tort and unfair competition laws.

Artificial Intelligence and Unfair Competition – Unveiling an Underestimated Building Block of the AI Regulation Landscape

Abstract The article illustrates the underestimated role unfair competition law (UCL) can play as a building block of the regulatory landscape relating to artificial intelligence (AI). To this end, it examines to what extent overarching, prominent principles of AI regulation such as fairness, transparency, autonomy and innovation are reflected in paradigms of UCL, and on this basis evaluates how the latter can contribute to the realisation of the former. In this way, prominent problems raised by AI that are commonly discussed under different legal regimes are reconsidered from a UCL perspective, showing that this perspective may complement or even substitute traditional regulatory approaches. Finally, the article indicates how AI could inversely give an impulse to the doctrinal advancement of UCL as a still ambiguous and insufficiently understood body of law.

The German Facebook Saga: Abuse of Dominance or Abuse of Competition Law?

This article provides a critical analysis of the German Facebook case and stresses the limits of competition law. Facebook’s terms and conditions regarding the use of Off-Facebook data were qualified as an exploitative abuse at various stages of the German Facebook proceedings. However, it is far from certain that Facebook would have written its terms any different if it was operating on a competitive market. From an economic viewpoint the market failure at hand is a pervasive information asymmetry rather than market power. Therefore, it is doubtful that the correct response lies within competition law. If competition rules must be rewritten in order to cope with market failures in digital markets, there is a serious risk that the abuse found is not an abuse of market power but an abuse of the market power provisions in competition law. Alternative routes that can be found in consumer contract, unfair competition or data protection laws might be viable options. The latter rules can be applied without a complicated finding of causality between market dominance and the use of ‘unfair’ contract terms. Admittedly, also the information paradigm can be called into question but amending rules of contract law avoids Herculean interpretations of competition law that go against a broadly supported ‘more economic approach’. Abusing competition law or enhancing contract law to improve the efficiency of digital markets, that is the question. Facebook case, goals of competition law, market failures, data law, information disclosure, consent, signing-without-reading problem, abuse of dominance, unfair contract terms, unfair commercial practice

Planned Obsolescence in the Context of a Holistic Legal Sphere and the Circular Economy.

Businesses may take advantage of rapid technological developments to increase sales by designing products with a short lifespan and encouraging consumers to buy a replacement more quickly than they otherwise might have to, which is commonly known as planned obsolescence. While employing a holistic approach and exploring planned obsolescence from three different angles—the demand side, supply side and environmental side—the article argues that the current measures in the fields of unfair competition and consumer protection law, competition law and environmental law are quite insufficient to deal with planned obsolescence. Therefore, there is a need for an EU measure outlawing planned obsolescence in the context of the circular economy.