(4) Infringement of trade secrets

1. The concept of trade secrets. Trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the right holder, are practical, and have been kept secret by the right holder. Trade secret rights are the crystallization of the labor of the obligee. Trade secret rights are an intangible property right owned by the obligee. It is necessary for the Anti-Unfair Competition Law to prohibit infringement of trade secrets as unfair competition. Trade secrets are different from patents and registered trademarks. It can be owned and used by multiple rights holders at the same time, as long as the means of acquisition and use are legal. Such as independent research and development, or deciphering other people's business secrets through reverse engineering, etc.

2. Infringement of trade secrets. Infringement of trade secrets refers to the act of obtaining, disclosing, and using other people's trade secrets by improper means. Article 10 of the Anti-Unfair Competition Law and the State Administration for Industry and Commerce's "Several Provisions on Prohibiting the Infringement of Trade Secrets" (issued on November 23, 1995) state that operators shall not use the following means to infringe on trade secrets:

(1) Obtaining the right holder’s business secrets through theft, inducement, coercion or other improper means;

(2) Disclosing, using or allowing others to use the right holder’s business secrets obtained by means of the preceding paragraph; Secret;

(3) According to the law and contract, people who are obliged to keep business secrets (including units and individuals who have business relationships with the right holder, and employees who work in the right holder's unit) disclose, use or allow Others use the trade secrets in their possession. If a third party knowingly or should have known about the illegal acts listed in the preceding paragraph obtains, uses or discloses the business secrets of others, it shall be deemed as infringement of business secrets. In practice, the behavior of a third party may constitute concurrent infringement with the infringer.

3. Key points of conduct:

(1) To determine whether an infringement is constituted, the existence of the trade secret must first be confirmed in accordance with the law.

(2) The actor can be an operator or other person. The vast majority of perpetrators of various unfair competition behaviors regulated by the Anti-Unfair Competition Law are required to have the status of business operators, while those who infringe on trade secrets are not subject to this restriction.

(3) Objectively, the actor committed an act of infringing on other people’s business secrets. The methods of implementation include theft, inducement, coercion or improper disclosure and use.

(4) Obtaining, disclosing or using other people’s trade secrets by illegal means has or may bring harm to the right holder.

4. Legal Liability

The Anti-Unfair Competition Law stipulates the punishment methods for infringement of trade secrets:

First, the supervision and inspection department shall order the cessation of illegal activities ;

Second, a fine of not less than 10,000 yuan but not more than 200,000 yuan may be imposed depending on the circumstances.

In practice, rights holders may also request sanctions for violations of agreements and infringement of trade secrets in accordance with the relevant provisions of the Contract Law and Labor Law. In addition, Article 229 of my country’s Criminal Law stipulates the crime of infringement of trade secrets.

(5) Low-price dumping

Low-price dumping refers to an operator selling goods at a price lower than cost for the purpose of squeezing out competitors. Low dumping goes against the principles of enterprise survival and the law of value. In market competition, it often leads to vicious competition events such as price wars and the collapse of small and medium-sized enterprises, and even leads to serious consequences of the shrinkage of the entire industry. In 1998, milk dealers in the Shanghai market dumped milk at low prices in order to compete for the market, causing the industry to operate at a loss and become unsustainable. Later, relevant government departments intervened in accordance with the law, and the competition order in the milk market was put back on track. In order to prevent problems before they occur, both the Anti-Unfair Competition Law and the Price Law prohibit operators from selling goods at lower than cost prices in order to combat competitors.

Article 11 of the "Anti-Unfair Competition Law" stipulates that operators shall not sell goods at a price lower than cost for the purpose of squeezing out competitors. Article 14 of the Price Law stipulates that operators shall not, in order to squeeze out competitors or monopolize the market, dump at prices below cost, disrupt the normal order of production and operation, or undermine national interests or the legitimate rights and interests of other operators. If goods are sold below cost due to special reasons, it does not constitute low-price dumping.

In this regard, Article 11 of the Anti-Unfair Competition Law lists four exceptions:

(1) Selling fresh goods;

(2) Dealing with goods whose validity period is about to expire Commodities or other overstocked commodities;

(3) Seasonal price reductions;

(4) Sales of commodities at reduced prices due to debt settlement, change of business, or closure of business.

The key points of low-price dumping behavior are as follows:

(1) The main body of the behavior is operators, and in most cases, they are large enterprises or companies with operations in a specific market. An enterprise with a dominant position.

(2) The operator objectively implemented low-price dumping behavior. Low-price dumping here, as mentioned above, refers to selling goods at a price lower than cost. In international trade, dumping does not require a price lower than the cost, which is different from the provisions of my country's Anti-Unfair Competition Law.

(3) The purpose of operators’ low-price dumping behavior is to squeeze out competitors in order to monopolize the market. Therefore, it is not that a certain commodity is sold below the cost price for a while, but that it is dumped at a low price with a large market volume for a long time. In their laws to prevent unfair competition, some countries clearly stipulate that dumping at low prices in large quantities for a continuous period of time constitutes unfair competition. Our country’s Anti-Unfair Competition Law does not yet have such quantitative technical provisions.

(6) Unfair sales with prizes

Unfair sales with prizes means that operators provide rewards (including money, physical objects, additional products) when selling goods or providing services. Services, etc.), actually use deception or other improper means to harm the interests of users and consumers, or harm the legitimate rights and interests of other operators.

Prize sales are an effective promotional tool, and their methods can be roughly divided into two types:

One is bonus sales that are awarded to all buyers;

The other is a lottery-style sales that rewards some buyers.

The law does not prohibit all sales with prizes, but only sales with prizes that may cause adverse consequences and undermine competition rules.

Article 13 of the Anti-Unfair Competition Law prohibits operators from engaging in three categories of sales with prizes by enumeration. The State Administration for Industry and Commerce issued "Several Provisions on Prohibiting Unfair Competition in Prize-Based Sales Activities" on December 9, 1993, which refined Article 13 and prohibited prize-based sales in the following ways:

< p> (1) Falsely claiming to have prize sales or making false representations about the type of prize, probability of winning, prize money, total amount, prize type, quantity, quality, method of provision, etc.;

(2) Using unfair means to deliberately let the designated personnel win the prize;

(3) Deliberately not putting the goods and lottery tickets with the winning mark on the market or not putting them together with the goods and lottery tickets, or deliberately putting the goods with the winning mark on the market. Products and lottery tickets with different bonus amounts or prize logos are put on the market at different times;

(4) Lottery-style sales with prizes, the prize amount exceeds 5,000 yuan (in the form of non-cash items or other economic benefits) As a reward, the amount shall be converted according to the normal price of similar goods or services in the market during the same period);

(5) Use prize sales methods to promote low-quality and high-priced goods;

( 6) Other deceptive sales with prizes.

The key points of unfair sales with prizes are as follows:

(1) The subject of unfair sales with prizes is the operator. Article 13 of the Anti-Unfair Competition Law and Order No. 19 of the State Administration for Industry and Commerce of the People’s Republic of China shall not apply to prize fund-raising and lottery sales activities of relevant institutions and groups approved by the government and relevant government departments.

(2) The operator has carried out unfair sales with prizes prohibited by law. Such as deceptive prize sales or huge prize sales.

(3) Operators implement unfair prize sales in order to compete for customers, expand market share, and squeeze out competitors.

According to the provisions of Article 26 of the Anti-Unfair Competition Law, if an operator violates the provisions of Article 13 of the Law by conducting sales with prizes, the supervision and inspection department shall order it to stop the illegal behavior and may impose a fine of 10,000 yuan according to the circumstances. A fine of not less than RMB 100,000 but not more than RMB 100,000 is imposed.

If the relevant parties are harmed by unfair competition in prize-based sales activities, they may file a lawsuit with the People's Court and request compensation in accordance with Article 20 of the Anti-Unfair Competition Law.

(7) Acts of defaming goodwill

Acts of defaming goodwill refer to operators fabricating and spreading false facts to damage the business reputation and product reputation of competitors, thus weakening their competitiveness. behavior.

Goodwill is the public’s comprehensive positive evaluation of the reputation of market operating entities. It is achieved by the long-term pursuit of the operator, deliberate creation and investment of a certain amount of money, time and energy. Good goodwill itself is a huge intangible wealth. In economic activities, it eventually returns to its owner through tangible forms (such as sales, profits). The law respects and protects goodwill gained through active labor and imposes severe sanctions on those who infringe on competitors' goodwill through unfair means. Article 14 of the Anti-Unfair Competition Law stipulates that operators shall not fabricate or spread false facts to damage the business reputation and product reputation of competitors.

The key points of behavior that defames goodwill are as follows:

(1) The subject of the behavior is an operator in market business activities. If other operators are instructed by him to engage in behavior that defames goodwill, , may constitute a co-infringer. If a news unit is exploited or instigated, it only constitutes a general act of infringing on the reputation rights of others, rather than an act of unfair competition.

(2) Operators have committed acts of defaming goodwill, such as fabricating and spreading false facts through advertisements, press conferences, etc., so that users and consumers do not know the truth and become suspicious, and dare not or no longer Engage in trading activities with disparaged operators. If the information published is true, it does not constitute defamation.

(3) The defamatory behavior is directed at one or more specific competitors. If the false facts fabricated and spread cannot be linked to a specific operator, the rights of the subject of goodwill will not be infringed. It should be noted that comparative advertising usually uses all other operators in the same industry as competitors to disparage the publicity, which should be regarded as commercial defamation.

(4) The operator slanders other competitors with the purpose of damaging the other party’s goodwill. It is obvious that his subjective mentality is deliberate.

4. Supervision and Inspection

(1) Supervision and Inspection Department

my country’s Anti-Unfair Competition Law stipulates in the general principles that the industrial and commercial administrative departments of the people’s governments at or above the county level It is the supervision and inspection department for unfair competition. If laws and administrative regulations stipulate supervision and inspection by other departments, such provisions shall prevail. The so-called other departments mainly refer to other administrative functional departments related to market management, such as quality and technical supervision departments, price departments, food hygiene administrative departments, etc.

(2) The powers of the supervision and inspection department

According to Article 17 of the Anti-Unfair Competition Law, the powers of the supervision and inspection department have the following three items:

(1) Inquire about the operators, interested parties, and witnesses under inspection in accordance with prescribed procedures, and require the provision of supporting materials or other information related to unfair competition;

(2) Inquiry and copying Agreements, account books, documents, documents, records, business correspondence and other materials related to unfair competition;

(3) Inspect property related to unfair competition, and order the inspected if necessary The operator explains the source and quantity of the commodity. Sales are suspended pending inspection, and the property is not allowed to be transferred, concealed, or destroyed.

When the supervision and inspection departments exercise the above powers, the operators, interested parties and certifiers under inspection shall truthfully provide relevant information or circumstances. This is stipulated in the Anti-Unfair Competition Law and must be fulfilled by operators. obligations. At the same time, staff of the supervision and inspection departments should produce inspection certificates when exercising their powers, otherwise the parties concerned may refuse to accept the inspection.

5. Legal liability for violations of the Anti-Unfair Competition Law

(1) Types of behaviors that violate the Anti-Unfair Competition Law

The Anti-Unfair Competition Law is To regulate various competitive behaviors, in addition to adjusting the competitive relationship between operators, it also involves the adjustment of the relationship between supervisory and inspection departments and operators when exercising their rights to maintain competition and market management. Therefore, the following behaviors are violations of this law:

1. Behaviors that restrict competition, namely the four types of behaviors that restrict competition discussed in Section 2 of this chapter.

2. Various unfair competition behaviors, namely the seven behaviors discussed in the third section of this chapter.

3. Violations of the provisions of this law by state functionaries who supervise and inspect acts of unfair competition, namely abuse of power and dereliction of duty as stipulated in Article 31 of the Anti-Unfair Competition Law, as well as acts stipulated in Article 32 of the Anti-Unfair Competition Law Favoritism and malpractice.

(2) Legal liabilities under the Anti-Unfair Competition Law

Chapter 4 of the Anti-Unfair Competition Law stipulates the legal liabilities for violations of the law, including civil liability, administrative liability, etc. There are three types of liability and criminal liability.

1. Civil liability. In order to protect the fair competition rights of legitimate operators, Article 20 of the Anti-Unfair Competition Law stipulates: If an operator violates the provisions of this law and causes damage to the infringed operator, it shall bear liability for damages; and shall bear the responsibility for the infringed operation. The reasonable expenses paid by the operator for investigating the unfair competition behavior of the operator that infringes upon its legitimate rights and interests. This provision applies to losses caused by all illegal activities prohibited by the Anti-Unfair Competition Law.

The Anti-Unfair Competition Law also provides provisions on the invalidity of civil actions. For example. The "invalidation of winning bids" in Article 27 is specifically designed to target unfair competition in bidding.

2. Administrative responsibilities. The industrial and commercial administrative departments at all levels are the supervision and inspection departments stipulated in the Anti-Unfair Competition Law and have administrative law enforcement functions. The Anti-Unfair Competition Law provides sanctions for almost every type of unfair competition behavior. These administrative sanctions are summarized as follows:

(1) Order to stop illegal activities and eliminate the impact;

(2) Confiscate illegal gains;

(3) Fine;

(4) Revoke the business license;

(5) Order to make corrections;

(6) Administrative sanctions.

It should be noted that: First, among the unfair competition behaviors listed in the Anti-Unfair Competition Law, there are three behaviors that are not mentioned in the chapter on legal liability, namely Article 11 Low Price Dumping Behavior, Article 12: Tying or attaching unreasonable conditions, Article 14: Defamation of goodwill. In this regard, the infringed operators can demand compensation in accordance with the provisions of Article 20 of the Anti-Unfair Competition Law, and can also protect their rights in accordance with the provisions of relevant laws (such as the General Principles of Civil Law, Price Law, etc.). Second, only the fifth of the above six types of administrative responsibilities applies to the government and its departments’ anti-competitive behavior, that is, the higher-level administrative agency shall order corrections.

3. Criminal liability. It is a common practice in competition laws in various countries to impose criminal penalties for serious acts of unfair competition. my country's Anti-Unfair Competition Law can pursue criminal liability for the following three types of behavior, namely trademark infringement, sales of counterfeit and inferior goods, and commercial bribery. In addition, the Advertising Law, Price Law, and Tendering and Bidding Law also have provisions for criminal sanctions. The criminal law also punishes the crime of infringement of trade secrets as one of the crimes. When studying, attention should be paid to the connection between various laws.