Ways and tools of behavior in unfair competition
Competition is good, although sometimes it’s better not to be. Although they also argue that competition allows you to develop both the economy and society.
However, the purpose of this article is not to acquaint readers with the diversity of opinions on this subject and not to show an inappropriate sense of humor in such a difficult topic as unfair competition.
That is why we will immediately proceed to the fundamental document in this area - Federal Law of July 26, 2006 No. 135-ФЗ On Protection of Competition (hereinafter the Competition Law). Immediately in a dry and simple language, we say that this law seeks to ensure the existence of fair competition as a rivalry between business entities, in which the independent actions of each of them exclude or limit the ability of each of them to unilaterally affect the general conditions for the circulation of goods on the corresponding product market.
That is why if independent actions of one subject or group of subjects lead to the exclusion or limitation of such rivalry, then we can clearly recognize that there is no competition. There is no fair competition. And if this, unfortunately, takes place, then the person whose rights and interests in such a contest were violated, can he take any retaliatory action to restore equal status?
If non-legal instruments are left outside this article, then we propose to adopt the following.
1. The Law on Competition prohibits unfair competition and article 14 contains an open list of actions that may be regarded as unfair competition.
2. By prohibiting unfair competition, the legislator shall provide the antimonopoly authority with the issuance of binding instructions prohibiting actions leading to unfair competition (prohibition of a specific type of activity).
3. By prohibiting unfair competition, the legislator gives the antimonopoly authority the right to bring to administrative responsibility for violation of competition law, setting fines for both officials and legal entities.
4. Taking into account our interests, he is impressed by the additional attention to intellectual property, the results of intellectual activity, which allows providing their additional protection if they are used by a competitor without sufficient grounds for this.
5. In judicial practice, disputes related to unfair competition are not uncommon. It was judicial practice that made it possible to obtain an interpretation of the legal norms contained in the Competition Law, ensuring their better understanding and application.
5.1. Courts take into account not only our national Competition Law, but also international treaties. So, in particular, the Paris Convention for the Protection of Industrial Property of 03.20.1883 is applied, which provides for a more broad interpretation of unfair competition as “any act of competition contrary to fair customs in industrial and commercial affairs”.
5.2. Courts can very carefully examine the actual situation that has arisen in violation of the provisions on unfair competition, especially in cases of illegal use of the results of intellectual activity. So, in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 11, 2008 N 5560/08 (case denso) it is indicated when considering a dispute related to the use of a domain whose name is identical to a trademark that domain name registration can be canceled in the following cases: 1 ) the domain name is identical or similar to the extent of confusion with the trademark of a third party; 2) the owner of the domain name does not have any legal rights and interests in relation to the domain name; 3) the domain name is registered and used in bad faith. Also, this will take into account what relation the violator has to the business of the business entity, whether the domain name reflects its company name (for legal entities) or the name (for individual entrepreneurs).
5.3. The provisions on unfair competition can be applied in the case of not only violation of the violation of the rights and interests of the rightholder-business entity, but also in case of threat of their violation. Although from the point of view of proof, such a situation will be extremely difficult.
6. It is also worthwhile to understand that the fight against an unfair competitor can be fought not only with the application of the competition law, but also with other legislation that protects the relevant rights and interests of the business entity. So, in case of violation of rights in relation to the results of intellectual activity, the dispute can only be civil law, in which the rules on unfair competition will have a derivative value.
We would like to reinforce the information presented in this article with references to the following key judicial acts on unfair competition. In particular, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 11, 2008 N 5560/08 (denso case), Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 18, 2011 N 18012/10 (case of MUMM).
By the way, I recommend that you familiarize yourself with our material on the 15 most popular acts of unfair competition. This material has been prepared on the basis of the practice of the Supreme Arbitration Court of the Russian Federation and the Federal Antimonopoly Service of the West Siberian District.
The author of the article Vitaly Vetrov
Our law firm provides various legal services in various cities of Russia (including Novosibirsk, Tomsk, Omsk, Barnaul, Krasnoyarsk, Kemerovo, Novokuznetsk, Irkutsk, Chita, Vladivostok, Moscow, St. Petersburg, Yekaterinburg).
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