Confusing behavior means that operators use various untrue methods to make false representations, explanations or promises about their own goods or services in market operations, or improperly use the intellectual work of others to promote their own goods. or services, causing misunderstandings among users or consumers, disrupting market order, and harming the interests of competitors or consumers.

1. Types of behavior. According to Article 5 of the Anti-Unfair Competition Law, the following behaviors are considered confusing behaviors:

(1) Counterfeiting another person’s registered trademark. Registered trademark rights are one of the important intellectual property rights. The Trademark Law has special provisions on the content, exercise methods and scope of protection of registered trademark rights. The Anti-Unfair Competition Law prohibits counterfeiting someone else’s registered trademark as an act of unfair competition. Its legislative intention is to weave a tighter legal net so that this kind of behavior is subject to prevention and sanctions from both the Trademark Law and the Anti-Unfair Competition Law. Therefore, in terms of legal liability, the Anti-Unfair Competition Law stipulates that such behavior shall be punished in accordance with the Trademark Law. If trademark law sanctions cannot be applied and the perpetrator does cause damage to others' registered trademarks, legal liability can be pursued in accordance with the Anti-Unfair Competition Law.

(2) Confused with well-known products. According to Article 5 of the Anti-Unfair Competition Law, unauthorized use of the unique names, packaging, and decoration of well-known goods, or use of names, packaging, and decoration similar to those of well-known goods, causes confusion with other people's well-known goods, and causes buyers to misunderstand It is a well-known product and constitutes unfair competition. On July 6, 1995, the State Administration for Industry and Commerce issued the "Several Provisions on Prohibiting Unfair Competition from Counterfeiting the Unique Names, Packaging, and Decoration of Well-Known Goods", which made comprehensive and detailed regulations on the protection of well-known goods. The so-called "well-known commodities" refer to commodities that have a certain reputation in the market and are known to the relevant public. The so-called unique name of a well-known product refers to a product name that is unique to a well-known product and is significantly different from its common name.

The reason why laws and administrative regulations protect the unique names, packaging, and decoration of well-known commodities is because the unique names, packaging, and decoration of commodities are the results of the creative work of the right holders. During the use process, the rights Only when people invest a certain amount of human and financial resources in publicity can it turn from an ordinary commodity into a well-known commodity. Others manufacture, use, and sell the unique names, packaging, and decoration of well-known products without authorization, with the purpose of using their good product reputation and certain popularity to promote their own products or obtain other illegal benefits. Their unfair attributes are obvious. When multiple people claim the ownership of the unique name, packaging, and decoration of well-known commodities, they should be determined according to the principle of first use.

(3) Use other people’s business names or names without authorization, leading people to mistakenly think that they are other people’s products. The name of a company and the name of a natural person are the most distinctive and basic identifying symbols of its owner. Company name rights and name rights are important components of personality rights protected by law. In market operations, the name of the enterprise and the name of the producer and operator are important signs to distinguish the source of commodity producers, operators or service providers. They can reflect the product reputation and business reputation of the enterprise or the producer and operator. Any use by others (for any purpose) must obtain the written consent of the legal owner. Unauthorized use not only infringes upon the legitimate prior rights of others, but also deceives consumers and undermines market competition rules. Therefore, it is expressly prohibited by the Anti-Unfair Competition Law.

(4) The act of forging or impersonating various quality marks and origins. According to relevant laws and administrative regulations, Chinese quality marks mainly include product quality certification marks and famous and quality marks.

The product quality certification mark refers to a mark issued to the enterprise through application, recognized by international and domestic authoritative certification agencies, indicating that the product quality has reached certification standards. The use of certification marks can improve the competitiveness of products and enhance user trust. Forgery and fraudulent use of certification marks without certification not only trample on the national commodity quality certification system and render it ineffective, but may also allow products with potential accident risks to flow into the market, endangering the lives or property safety of users and consumers. The Anti-Unfair Competition Law prohibits such behavior as a serious illegal act.

The famous quality mark is an honorary quality mark. There are three types of famous and quality marks given by the state to products: gold medal honorary mark, silver medal honorary mark, and "excellent" mark. It can only be obtained and used in accordance with legal procedures and approved by specialized agencies.

Counterfeiting and counterfeiting of famous trademarks is contrary to the business ethics of good faith and is a completely deceptive behavior. Therefore, it is prohibited by the Anti-Unfair Competition Law.

The name of origin is an explanatory mark indicating that a product comes from a certain country or region. When there is a fixed connection between product quality and characteristics and its place of origin, the name of the place of origin reflects not only the external connection between the product and its place of origin, but also reveals the internal connection between product quality and place of origin. At this time, the name of origin not only has symbolic significance for product quality, but also has a distinguishing function. Therefore, it is protected by law and international conventions or treaties, such as the provisions of the Paris Convention for the Protection of Industrial Property on names of origin, the Trade-related The provisions on geographical indications in the Intellectual Property Agreement. Article 5, Item 4 of the Anti-Unfair Competition Law prohibits the word "place of origin" in "forged place of origin". Its extension is obviously larger than "name of origin" and closer to "geographical indication". In practice, if the act of forging origin cannot be effectively stopped in accordance with the Product Quality Law and Industrial Property Law, it should be sanctioned in accordance with the Anti-Unfair Competition Law.

2. Behavioral requirements. Although there are many forms of confusing behavior, the Anti-Unfair Competition Law lists four express prohibitions in the most important ones. The main points of the behavior are summarized as follows:

(1) The subject of the behavior is an operator engaged in market transaction activities. Those who are not operators do not constitute the subject of this behavior (for example, state agency staff who use their special identities to engage in deceptive behavior are not subject to the provisions of this law).

(2) In market operation activities, operators have objectively implemented unfair competition methods prohibited by Article 5 of the Anti-Unfair Competition Law, such as counterfeiting other people’s business names, counterfeiting national famous and quality logos, and using them without authorization Unique names, packaging, decoration of well-known products, forged names of origin, etc. The essence is to misappropriate the fruits of others' labor and use their good product reputation or business reputation to obtain illegal benefits for themselves.

(3) The operator’s deceptive behavior has been or is enough to mislead users or consumers, that is, the deceptive behavior has reached a relatively serious level.

3． Legal liability. Article 21 of the Anti-Unfair Competition Law stipulates corresponding administrative penalties for the unfair competition behaviors listed in Article 5, which are specifically divided into two situations: (1) According to the provisions of Article 21, paragraph 1, the operator takes advantage of the Anyone who engages in market transactions by means of unfair competition prohibited by Article 5 of the Law shall be punished in accordance with the provisions of the Trademark Law and the Product Quality Law for the first, third and fourth acts; (2) For the second act, Article 21 shall Paragraph 2 stipulates that the supervision and inspection department shall order the cessation of illegal activities, confiscate illegal gains, and impose a fine of not less than 1 time but not more than 3 times of illegal gains depending on the circumstances; if the circumstances are serious, the business license may be revoked; if the sale of counterfeit and inferior products constitutes a crime, the fine shall be Investigate criminal liability in accordance with the law.

According to the provisions of Article 20 of the Law, other operators whose legitimate rights and interests are harmed by the above-mentioned acts of unfair competition may file an infringement lawsuit in order to obtain compensation. If the legitimate rights and interests of consumers are harmed by the above-mentioned unfair competition behavior, they may request legal relief in accordance with the Consumer Rights Protection Law. False propaganda refers to misleading and false propaganda made by operators using advertising and other methods to promote the quality, performance, ingredients, uses, origin, etc. of products. Selling goods through advertising or other means is the most common promotion method in modern society. However, various types of false advertisements and other false propaganda may disturb people's viewing and hearing, harm socialist spiritual civilization; or directly mislead users and consumers, causing them to make wrong consumption decisions, causing a large number of social problems; or infringe on other operators, especially It is the legitimate interests of competitors in the same industry that cause chaos in the order of fair competition. The Advertising Law and the Anti-Unfair Competition Law both regulate this type of behavior as illegal acts that must be prohibited.

Article 9 of the Anti-Unfair Competition Law stipulates that operators shall not use advertising or other methods to mislead the quality, ingredients, performance, uses, producers, expiration dates, origins, etc. of goods. false propaganda. Advertising operators shall not act as agents, design, produce, or publish false advertisements without knowing or should have known.

Article 3 of the Advertising Law stipulates that advertisements must be true and legal and comply with the requirements of the construction of socialist spiritual civilization. Article 4 stipulates that advertisements shall not contain false content and shall not deceive or mislead consumers.

1． Key points of behavior:

(1) The main subjects of the behavior are advertisers, advertising agency producers and advertising publishers. In some cases, the three identities may overlap.

(2) The above-mentioned entities have carried out false propaganda.

(3) The above-mentioned false advertising or false propaganda has reached the level of misleading and is therefore socially harmful.

(4) Subjectively, advertisers are legally responsible for false advertising only if they knew or should have known about it; for advertisers, regardless of their subjective status, they must be responsible for false advertising. Bear legal responsibility.

2． Legal liability:

(1) Legal liability of the operator (advertiser). Paragraph 1 of Article 24 of the Anti-Unfair Competition Law stipulates that if an operator uses advertising or other methods to make misleading and false advertisements for goods, the supervision and inspection department shall order it to stop the illegal behavior, eliminate the impact, and may impose sanctions according to the circumstances. A fine of not less than 10,000 yuan but not more than 200,000 yuan is imposed.

(2) Legal liability of advertisers. Paragraph 2 of Article 24 of the Anti-Unfair Competition Law stipulates that if an advertising operator acts as an agent, designs, produces, or publishes false advertisements while knowingly or should have known about it, the supervision and inspection department shall order it to stop the illegal behavior, confiscate the illegal gains, and enforce the law in accordance with the law. impose fines. The "according to law" here refers to the advertising law. The fines stipulated in Article 37 of the Advertising Law refer to fines ranging from one time to five times the advertising fee. If the circumstances are serious, the advertising business may be stopped; if a crime is constituted, criminal liability shall be pursued in accordance with the law.

(3) Joint and several liability. Article 38 of the Advertising Law stipulates: Advertisers who publish false advertisements, deceive and mislead consumers, and damage their legitimate rights and interests shall bear civil liability. Advertising operators and advertising publishers who know or should know that the advertisement is false but still design, produce, and publish it shall bear joint and several liability in accordance with the law. Advertising operators and advertising publishers who cannot provide the real name and address of the advertiser shall bear full civil liability.

Social groups and other organizations that recommend goods or services to consumers in false advertisements and cause harm to the legitimate rights and interests of consumers shall bear joint and several liability in accordance with the law. Commercial bribery refers to the behavior of operators secretly giving property or other benefits to relevant personnel of the counterparty or other relevant personnel who can affect the transaction in order to obtain trading opportunities. Commercial bribery can take many forms. For a long time in China, it has been very common to seek trading opportunities in the name of kickbacks, discounts, commissions, consulting fees, introduction fees, etc. How to judge whether it is illegal? We must use the law as a standard and analyze its substantive characteristics to obtain draw correct conclusions.

Article 8 of the Anti-Unfair Competition Law stipulates that operators shall not use property or other means to bribe to sell or purchase goods. If a kickback is secretly given to the other unit or individual outside the accounts, it will be punished as a bribe; if the other unit or individual secretly accepts a kickback outside the accounts, it will be punished as a bribe. When an operator sells or purchases goods, he or she may expressly give discounts to the other party and commission to the middleman. If an operator gives discounts to other parties or commissions to intermediaries, they must be truthfully recorded in the accounts. Operators who accept discounts and commissions must keep their accounts truthfully.

1. Key points of the behavior:

(1) The subjects of the behavior are operators and people instructed by operators (including their employees); other subjects may constitute bribery, but it is not commercial bribery.

(2) The purpose of the behavior is to obtain market transaction opportunities, not other purposes (such as political purposes, promotion, obtaining professional titles, etc.).

(3) There is an act of privately and secretly giving property and other benefits to others, and reaching a certain amount. If it is just a promise to give property, it does not constitute this behavior; if the amount of property or benefit given is too small, if a small gift is given to connect the relationship, it does not constitute this behavior.

(4) This behavior consists of two aspects: bribery and bribery. If one party offers a bribe but the other party does not accept it, it does not constitute commercial bribery; if one party asks for a bribe but the other party does not pay it, it does not constitute commercial bribery.

(5) The objective aspect of commercial bribery is that it violates the laws and regulations of the country on finance, accounting and integrity, etc. The secret payment of property and other compensation is highly concealed. This is the main criterion for judging this behavior, that is, whether it is given secretly and secretly outside the accounts. If the method is kept secret and not recorded in the accounts, it is commercial bribery. On the contrary, if both parties adopt an open and explicit method and truthfully record the transactions in the accounts, it will be regarded as normal business dealings and regarded as commissions and rebates.

2． Legal liability.

According to Article 22 of the Anti-Unfair Competition Law, if an operator commits commercial bribery and it constitutes a crime, he shall be held criminally responsible; if it does not constitute a crime, the supervision and inspection department may impose a fine of not less than 10,000 yuan but not more than 200,000 yuan and confiscate it. its illegal gains.

This provision is the basic basis for punishing commercial bribery. According to the "Interim Provisions on the Prohibition of Commercial Bribery" issued by the State Administration for Industry and Commerce on November 5, 1996, relevant units or individuals who accept bribes when purchasing or selling goods shall also bribe the operators in accordance with Article 22 of the Anti-Unfair Competition Law Punishment provisions include fines, confiscation of illegal gains, and criminal liability. 1． Trade secret concept. 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 confidential 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 the infringement of trade secrets as unfair competition. Trade secrets are different from patents and registered trademarks in that they 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 the means mentioned in the preceding paragraph. Secrets; including: disclosing, using or allowing others to use previous means to obtain the obligee's business secrets; violating the agreement or violating the obligee's requirements for keeping business secrets, disclosing, using or allowing others to use the business secrets in their possession.

(3) According to laws and contracts, people who are obliged to keep business secrets (including units and individuals that have business relationships with the right holder, and employees working in the right holder's unit) disclose, use or allow others to use the trade secrets it possesses. 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, one must first confirm the existence of the trade secret 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) The act of 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 provides for penalties for infringement of trade secrets. First, the supervision and inspection department shall order the illegal conduct to cease. Second, a fine of not less than RMB 10,000 but not more than RMB 200,000 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 relevant provisions of contract law and labor law. In addition, Article 229 of the Chinese Criminal Law provides for the crime of infringement of commercial secrets.

5. Two behaviors that need to be excluded when determining the infringement of trade secrets:

(1) "Reverse T-process". It refers to obtaining relevant technical information about the product through technical means to disassemble, survey, map, analyze, etc. the product obtained from public channels. Trade secrets obtained through self-research and development or reverse engineering shall not be deemed as infringement of trade secrets. However, if a party obtains the trade secrets of others through improper means and then claims that the acquisition is legal on the grounds of reverse engineering, this will not be supported.

(2) Customer list in trade secrets.

Generally refers to special customer information consisting of the customer's name, address, contact information, transaction habits, intentions, content, etc., which is different from relevant public information, including customer lists that bring together many customers, and long-term stable trading relationships. Specific customers. Low-price dumping means that operators sell goods at prices lower than cost for the purpose of squeezing out competitors. Low-price dumping violates the survival principles and value laws of enterprises. 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 nip problems in the bud, 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 damage 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 or other backlogged goods; (3) seasonal price reductions; (4) Selling goods at reduced prices due to paying off debts, changing production, or going out of business.

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

(1) The main body of the behavior is operators, and in most cases

it is large enterprises Or an enterprise with an advantageous operating position in a specific market.

(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 China'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. China’s Anti-Unfair Competition Law does not yet have such quantitative technical provisions. Improper prize sales refer to the fact that operators use deception or other improper means to harm the interests of users and consumers in the name of providing rewards (including money, physical goods, additional services, etc.) when selling goods or providing services, or Behavior that damages 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, and the other is rewards for partial purchases. Lottery-style sales with prizes. 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: (1) False claims Prize-based sales or false representations about the types of prizes, probability of winning, maximum prize amount, total amount, prize types, quantity, quality, method of provision, etc.; (2) Using unfair means to deliberately allow designated personnel to win prizes ; (3) Deliberately not putting the products and lottery tickets with the winning logo on the market or not putting them on the market at the same time as the products and lottery tickets, or deliberately putting the products and lottery tickets with different bonus amounts or prize logos on the market at different times; (4) Lottery-style sales with prizes, the maximum prize amount exceeds 5,000 yuan (if non-cash items or other economic benefits are used as rewards, the amount shall be converted according to the normal price of similar goods or services in the market during the same period); (5) Use of prize sales Means to promote low-quality and high-priced goods; (6) Other deceptive prize-based sales practices.

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 the prize-winning 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 be ordered to stop the illegal behavior and may be fined 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. The behavior of defaming goodwill refers to the behavior of operators fabricating and spreading false facts to damage the business reputation and product reputation of competitors, thus weakening their competitiveness.

Goodwill is the public’s comprehensive positive evaluation of the reputation of market operating entities. It is achieved by the long-term pursuit, deliberate creation, and investment of a certain amount of money, time and energy by the operators. 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 intentional.