1. Unfair Competition According to the "Law of the People's Republic of China and the State Against Unfair Competition", "unfair competition" means that operators violate the provisions of the law and harm the legitimate rights and interests of other operators. , behavior that disrupts social and economic order. Specifically, it is the behavior of operators that violates voluntariness, equality, fairness, good faith and recognized business ethics, violates relevant laws and regulations, damages the legitimate rights and interests of other operators, and disrupts the social and economic order in market transactions. It includes operators’ deceptive market transactions, commercial bribery, false advertising, infringement of trade secrets, price reduction, tying, unfair sales with prizes, destruction of goodwill, collusive bidding, purchase restrictions and exclusion, and the abuse of administrative power restrictions by administrative agencies. Competition and other behaviors. As a special infringement, unfair competition has its own characteristics: first, the subjects of unfair competition are operators and, in a certain sense, administrative agencies. Generally speaking, only the subjects of market competition can become the subjects of unfair competition. However, in recent years, some local governments and departments have used administrative means to restrict market competition. Considering the serious harm of such behavior to fair market competition, the "Anti-Unfair Competition Law" also includes the abuse of administrative power by administrative agencies to restrict market competition. in. Second, unfair competition is behavior that damages the legitimate rights and interests of other operators and disrupts the social and economic order. This kind of behavior objectively violates the fair transaction rights and normal competition order of all competitors in the same industry, and harms the interests of ordinary consumers and even the public interest of the entire society. Generally, the objects infringed by civil torts are specific and limited in number. Third, the subjective aspect of unfair competition emphasizes that the perpetrator knows that the implementation of such unfair competition will harm the interests of other competitors or ordinary consumers and even the public, and hopes or allows this result to occur. Generally, civil torts include both intentional and negligent acts, and some also require no-fault liability, such as product quality liability. 2. Causes of Unfair Competition Behaviors On the surface, unfair competition behaviors are actions taken by operators to win in the competition because the supply of products exceeds demand. In fact, the emergence of unfair competition is not only related to operators, but also to the market, government and related systems. Only by carefully analyzing the causes of unfair competition can we find effective regulatory measures. In my country's current market economy environment, the main causes of unfair competition are as follows: (1) Driven by economic interests, short-term competitive behavior. Due to the intrinsic drive of interests, unscrupulous competitors choose short-term competition. behavior, sacrificing long-term interests for the sake of short-term interests. It is often easier for individuals to obtain benefits from unfair competition. Therefore, the urge to maximize profits is the intrinsic root of unfair competition. (2) The market mechanism and market system are imperfect. The economy is developing rapidly, but many market behavior rules are seriously lagging behind, which objectively provides convenient conditions for many unfair competition behaviors. The full play of the market's role is inseparable from a sound market system, a reasonable market structure, and a smooth market mechanism. (3) The contradiction between market gravity and market capacity intensifies. The initial market gravity is huge, inducing too many operating companies to enter, while the current market capacity is narrow, resulting in an imbalance of market supply and demand, which is one of the fundamental reasons for chaotic competition. (4) Many competitors lack a correct sense of competition. Some operators fail to improve their moral quality and law-abiding concepts accordingly with economic development. The mentality of eager for quick success and quick profit brings about the lack of fair competition awareness and the loss of business ethics. In terms of behavior, triggered a series of negative consequences. (5) Enterprises’ backward concept of competition. Due to the long-term planned economy model, our country’s enterprises, especially state-owned enterprises, have a very backward concept of competition. In addition, the current industrial structure is unbalanced, and a large number of enterprises are overly competitive in the same industry, level, time and region. , thus triggering unfair competition. There are no fixed regulations for the use of market competition. Various means of competition can bring opportunities and benefits. This requires operators to learn to comprehensively use multiple means of competition to compete flexibly and skillfully based on their own actual conditions and changes in the objective environment. (6) Imperfect legal provisions: The current laws over-prescribe principles and remain at the level of a "declaration" or "programme". They fail to provide accurate provisions and lack operability. Some important concepts in various laws and regulations have inconsistent meanings and lack systematization and uniformity, causing confusion and difficulty in understanding.

The lagging nature of legislation itself also leads to the “absence of law” within a certain period of time. (7) Unfair law enforcement Unfair law enforcement makes unfair competition intensify in some regions and industries. The consequences of unfair law enforcement are serious. First, it constitutes an injustice to law-abiding subjects. Once the law enforcement process deviates from the track of fairness and justice, it will be unable to achieve or even deviate from the purpose of legislation, which will inevitably lead to psychological imbalance of law-abiding subjects, which will lead to distortion of the value standards they trust, and ultimately make law-abiding subjects have to evolve into illegal subjects. Secondly, it artificially builds unreasonable legal barriers between regions and departments, which will become an important inducement for unfair competition for different competing entities. 2. The importance of anti-unfair behavior. my country formulated and implemented the first "Anti-Unfair Competition Law" in 1993. It played a very important role in protecting intellectual property rights and is an important part of the intellectual property protection system. . The Anti-Unfair Competition Law provides additional protection for intellectual property rights, and this protection is very necessary and important.

1. The positive role of the "Anti-Unfair Competition Law" in additional protection of intellectual property rights

According to statistics, in 2006 alone, the national industrial and commercial authorities investigated and handled cases based on the "Anti-Unfair Competition Law" There were 12,384 cases with a case value of 206 million yuan. The additional protection for intellectual property rights provided by the "Anti-Unfair Competition Law" is mainly reflected in the following aspects:

1. Regulate unfair competition behaviors related to intellectual property rights. The Anti-Unfair Competition Law lists 11 types of unfair competition behaviors, 5 of which are related to intellectual property rights, namely counterfeiting, false representation, false publicity, commercial defamation and infringement of trade secrets.

2. Provide supplementary protection for intellectual property rights.

① Compensatory effect on the Patent Law. For example, the Patent Law protects design patents when it comes to the protection of prior use rights, but stipulates that the protected design patents do not conflict with prior use rights. The prior use right must be protected in accordance with Article 5(2) of the Anti-Unfair Competition Law and the State Administration for Industry and Commerce’s “Several Provisions on Prohibiting Unfair Competition Acts of Counterfeiting the Unique Names, Packaging, and Decoration of Well-known Goods” .

② Compensatory effect on the Copyright Law. The objects protected by my country's Copyright Law are literary and artistic works, but the title of the work cannot be protected separately by the Copyright Law because it is not an independent work. This can only be done in accordance with the anti-counterfeiting law of the Anti-Unfair Competition Law. theory to stop it.

③ Compensatory effect on the Trademark Law. my country's Trademark Law adopts the principle of registrationism in the protection of trademark rights and mainly protects registered trademarks. Article 5(2) of the Anti-Unfair Competition Law provides protective provisions for well-known commodity marks, which actually includes unregistered trademarks within the scope of protection.

3. Regulate unfair competition in the implementation of intellectual property rights. When enforcing intellectual property rights, if an intellectual property owner abuses its advantageous position to implement tying and additional conditions, set predatory prices, and engage in unfair competition such as dumping, this is a relatively typical act of unfair competition and the Anti-Unfair Competition Law should be applied. To regulate.

2. Defects in the protection of intellectual property rights in the "Anti-Unfair Competition Law"

1. The scope of unfair competition in the field of intellectual property rights is too narrow and does not New unfair competition behaviors lack effective regulatory power. For example, infringement of unregistered trademarks, squatting on registered trademarks, infringing on the titles of works or other books and periodicals, specializing in the packaging and decoration of other people's well-known products, squatting on domain names, etc. be included within the scope of adjustments to existing laws.

2. There is a lack of general provisions on unfair competition, and the law enforcement agencies are not given the right to identify it, so they cannot fully protect intellectual property rights.

3. There are no provisions to regulate the abuse of intellectual property rights, and unfair competition behaviors that abuse intellectual property rights cannot be effectively controlled.

4. The provisions regulating intellectual property monopoly are not perfect enough. Some multinational companies take advantage of their advantageous position and use intellectual property protection as a means of monopoly to curb the development of others in order to control and monopolize the market. The Anti-Unfair Competition Law cannot effectively regulate these behaviors.

3. Several problems existing in the use of the Anti-Unfair Competition Law by the industrial and commercial authorities to protect intellectual property rights

As the competent administrative agencies authorized by the Anti-Unfair Competition Law, the industrial and commercial authorities It is necessary to increase law enforcement efforts, consciously use the Anti-Unfair Competition Law to protect intellectual property rights, and give full play to the additional protective role of this law in protecting intellectual property rights.

1. The awareness of using the Anti-Unfair Competition Law to protect intellectual property rights should be enhanced, the ability to enforce the Anti-Unfair Competition Law should be improved, and the role of this law in protecting intellectual property rights should be fully utilized.

2. Fully understand the convenience of industrial and commercial departments using the Anti-Unfair Competition Law to protect intellectual property rights. It is convenient for industrial and commercial departments to use the Anti-Unfair Competition Law to protect intellectual property rights. The first is the initiative of supervision and inspection. The industrial and commercial authorities may, in accordance with the authorization of the Anti-Unfair Competition Law, take the initiative to supervise and inspect unfair competition behaviors and exercise administrative law enforcement powers. The second is the legitimacy of investigation and evidence collection. When investigating and punishing acts of unfair competition, the industrial and commercial authorities may investigate and collect evidence in accordance with their powers. The third is the convenience of resolving disputes. From the perspective of saving legal resources and facilitating dispute resolution, administrative relief is a simple and easy way to resolve disputes.

3. Correctly apply the law to apply regulations to infringement of intellectual property rights. For example, the acts of counterfeiting other people's registered trademarks and unauthorized use of other people's business names will be governed by the Trademark Law. Any unauthorized use of another person's business name or the fraudulent use of another person's name will be handled in accordance with Article 21 of the Anti-Unfair Competition Law and Article 53 of the Product Quality Law.

4. Actively strengthen the protection of business secrets in accordance with its authority. The State Administration for Industry and Commerce has formulated "Several Provisions on Prohibiting Infringement of Trade Secrets" in accordance with the "Anti-Unfair Competition Law", and the industrial and commercial authorities can proactively handle relevant trade secret disputes in accordance with their authority.

5. Carefully handle the conflict between trademark rights and trade name rights. When dealing with such conflicts, in addition to adhering to the principles of protecting prior rights and rights coverage, the principle of protecting fair competition should be applied. The "Opinions on Solving Certain Issues in Trademarks and Business Names" promulgated by the State Administration for Industry and Commerce stipulates: "The words in the trademark and the size of the business name are the same or similar, causing confusion to others about the source of market entities and their goods or services ( (including the possibility of confusion), thus constituting unfair competition, shall be stopped in accordance with the law."

6. Regulation of unfair competition behaviors related to intellectual property rights that are not provided for in the "Anti-Unfair Competition Law". question. Unfair competition behaviors that are not expressly stipulated in the Anti-Unfair Competition Law must be identified and dealt with based on the principle of "good faith". In the long run, in order to strengthen the function of protecting intellectual property rights in the Anti-Unfair Competition Law, the law must be revised, add general provisions, and add as many items as possible that have already appeared in real life but cannot be regulated by traditional intellectual property laws. typical unfair competition behaviors, and give full play to the protective role of intellectual property rights.

7. Promote the revision of the Anti-Unfair Competition Law and strengthen its function and role in protecting intellectual property rights, especially its protective function in protecting intellectual property rights. Industrial and commercial authorities should carefully summarize the experience and problems in law enforcement practice, and actively promote the revision of the Anti-Unfair Competition Law to make it more complete and operable, and truly exert its protective function for intellectual property rights.