Article 2 of the PRC Anti-unfair Competition Law provides that “a business operator shall, during the course of a market transaction, follow the principles of voluntariness, equality, fairness and good faith, and comply with generally accepted business ethics. For the purpose of this Law, ‘unfair competition’ shall refer to any act of a business operator that damages the lawful rights and interests of other business operators and disrupts the social and economic order in breach of the provisions of this Law”. Although academic circles remain divided over whether this clause can be directly cited as a basis for civil judgments, the courts have, in practice, established a number of precedents in cases relating to intellectual property, which have been identified as unfair competition under Article 2.
For example, in Beijing Unitalen Attorneys At Law v Beijing Guanglixin International Intellectual Property Agency in 2008, Unitalen alleged that a Google search for the keywords “Unitalen Attorneys At Law” returned links to the website of Guanglixin which contained content similar or identical to that on the website of Unitalen. Guanglixin argued in an appeal that this did not constitute an act of unfair competition as specified in the Anti-unfair Competition Law.
Executive partner
Run Ming Law Office
However, the Beijing Second Intermediate People’s Court stated in its verdict at second instance that “if, when pursuing civil liability for acts of unfair competition under the Anti-unfair Competition Law, we strictly refer to the typical acts of infringement as set out thereunder without taking into account the general provisions and principles of that law, this is not conducive to encouraging and protecting fair competition, curbing acts of infringement and achieving the original intention of the Anti-unfair Competition Law. Thus, with respect to any acts not specifically defined in Chapter 2 of the Anti-unfair Competition Law, a people’s court may establish such acts as acts of unfair competition based on the principles set out in the Anti-unfair Competition Law”.
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Wang Yadong is executive partner of Run Ming Law Office.
Lu Lei is an associate at Run Ming Law Office.
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