Forms of unfair competition. 135-FZ "On Protection of Competition"

Competition is a special rivalry between the subjects of economic relations. Each of them seeks to create better conditions for themselves and to obtain maximum results of entrepreneurial activity.

Classification

Competition can be:

• Perfect;
• Unconscionable;
• Imperfect;
• Price;
• Monopolistic;
• business;
• Banking and others.

Basic Types

In the economic system, there are two basic types of competition: perfect and imperfect. The first is a theoretical construction, an ideal. This model is used in the development of methodology for the analysis of other market structures. Imperfect type represent monopoly, monopolistic competition, oligopoly. For certain actions, these species do not differ, but they have a number of specific features.

Monopoly, for example, is usually represented on the market by one company having large enough sizes. For its successful functioning, it is necessary to maintain the uniqueness constantly. Oligopoly is formed by several companies that have the opportunity to agree on joint influence on the state of the market. As one of the key objectives is the observance of stability against the backdrop of maintaining a given level of profitability. Under monopolistic competition is understood such a model, in which each company does not have a significant influence on the state of the market. Accordingly, the actors act according to their capabilities.

Within the framework of such a model, the emphasis is usually on differentiation. In this case, there is no strategic behavior (unlike oligopoly). With the development of the market, issues related to unfair competition of subjects have become increasingly important. The main steps to settle relations in the market sphere were taken after the collapse of the USSR.

Normative base

In the Russian Federation, the concept of competition law has been implemented through the approval of a special legal act. Additional standards were included in it, together with a complex of antimonopoly provisions. Initially, the RSFSR Law No. 948-1 did not disclose the concept of unfair competition. In Art. 10 of this act provided for a general ban on it. . Forms of unfair competition were also established in the norm. However, this list was exemplary. Later, the legal act was amended.

FZ "On Protection of Competition"

" устанавливаются правовые и организационные основы, методы предупреждения и пресечения монополистической деятельности. Currently, the new Law of 26.07.2006 is in force. The Federal Law "On Protection of Competition " establishes legal and organizational bases, methods for preventing and suppressing monopolistic activities. In the normative act the toolkit was updated, the mechanism of regulation of relations in the financial and commodity markets was unified. Combating unfair competition, therefore, has reached a qualitatively new level.

Definition

The problem of unfair competition caused the need for taking operative legislative measures. One of them was a change in the legal framework relating to monopoly activity. Law No. 135 merged the provisions of normative acts No. 948-1 and No. 117. In the new document, the term "unfair competition" was subjected to some revision. Changes, however, did not affect its content.

According to Art. 4 (clause 9), any actions of economic entities or their groups aimed at gaining advantages in the conduct of their entrepreneurial activities, contrary to the law, the customs of circulation, the requirements of reasonableness, integrity, justice, causing or capable of causing losses to other economic entities, are considered unfair competition Or damage their business reputation.

Specificity

An important conclusion follows from the content of the definition. The key element is always action. , бездействие не может в данном случае рассматриваться как нарушение законодательства. Even if all other signs of unfair competition are present, inaction can not in this case be considered a violation of the law. This is the difference from monopolistic activity. In certain circumstances, inaction can also act as it. возникает в рамках отношений субъектов на одном рынке. The problem of unfair competition arises within the framework of the subjects' relations in one market. At the same time, a person who conducts economic activities and in respect of whom improper actions are committed, and a party violating the requirements of the law, must be in a certain interaction. They must be competitors.

The key qualifying element is the contradiction of the subject's actions to the legislation, the requirements of integrity, justice, reasonableness, customs of turnover. Another important sign of recognition of unfair competition is the infliction of losses or damage to reputation. Harm or financial loss does not have to be real. In this case, there is sufficient potential for their infliction.

Forms of unfair competition

Article 14 (part 1) of Law No. 135 contains a general prohibition on unlawful actions of certain subjects in relation to others. . In addition, various actions are defined in the norm, which are regarded as forms of unfair competition . They are grouped into 5 categories. : The law identifies the following forms of unfair competition :

1. Distribution of distorted, false, inaccurate information, capable of causing financial damage to an economic entity or damage to its reputation.
2. Misleading consumers about the place, method and nature of the product, its properties and quality.
3. An incorrect comparison of an economic entity sold or produced by it with goods of other manufacturers.
4. Sale of products with the unauthorized use of the results of intellectual labor and means of individualization of legal entities, services, works, facilities, equated to them.
5. Receipt, disclosure, use of production, scientific and technical, trade information, trade secrets including without the consent of its owner.

An Important Moment

The above actions are subject to unconditional prohibition, regardless of their compliance with the conditions included in the interpretation of the term " unfair competition". исходит из того, что указанные выше проявления не требуется соотносить с определением, закрепленным в ст. Judicial practice assumes that the above manifestations need not be correlated with the definition set forth in Art. 4. Provided for in Art. 14 compounds are considered as direct norms applied directly.

Means of individualization

Part two of Art. 14 of Law No. 135 includes provisions that prohibit unfair competition in intellectual property. They do not have an approximate number of offenses. On the legal design these provisions are close to the norms of Art. 10 GK. By virtue of this article, the abuse of law is prohibited, the use of legal possibilities to restrict competition. The latter is not covered by the definition fixed by Art. 4 of Law No. 135. However, despite this, the actions of subjects violating the provisions of Art. 14, part 2, are considered as abuse of law in other forms.

Distribution of inaccurate, distorted, inaccurate information

This is the first form of unfair competition, established in Art. 14. It should be noted that the distribution includes distorted and inaccurate information. This has a special law enforcement significance, since many subjects, avoiding direct attacks, use veiled means. Discrediting is aimed at attracting buyers to the product by providing unreliable, distorted or inaccurate information about the competitor, his services or products. These actions can cause damage not only to the economic entity, but also to the consumer. There are also situations when a person disseminates information that does not correspond to reality, about himself. At the same time, it has no purpose to discredit other economic entities. As the key signs of unfair competition of this type should be distinguished:

1. Distribution of defective information.
2. The ability of information to damage reputation or financial loss.

Misleading

It, as well as the dissemination of defective information, is aimed at attracting consumers to their services, goods or works. However, in this case, attacks against other subjects are not applied. An unscrupulous manufacturer provides untrue information regarding his products. At the same time, misleading is not limited to deliberately false statements. The subject can provide and reliable information, which for one reason or another can form a false idea about the object. In this case, neither intent nor intent to cause damage will matter.

Incorrect comparison

Initially, in the law of the RSFSR, this composition contained an important reservation. In the normative act, the incorrect comparison was regarded as improper advertising. оно может использоваться самостоятельно или включаться в прочие действия, ориентированные на дискредитацию субъекта или введение в заблуждение потребителей. As a form of unfair competition, it can be used alone or included in other actions aimed at discrediting the subject or misleading consumers. In the world market there is a different attitude towards the admissibility of applying comparisons. Some experts believe that criticism of a competitor, if it relies on facts and truthful, will be very useful. Other authors fundamentally reject the possibility of comparing products or services. Domestic legislation regulating competition issues does not create obstacles to truthful criticism. Meanwhile, it should be treated with caution, taking into account the obvious interest of the subjects expressing it.

Illegal use of intellectual products

It is not allowed to exchange, sell or otherwise introduce goods into circulation, if at the same time the results of intellectual work and means of individualization of products, services, legal entities equated to them were misused. This composition of the offense is connected with the actions of an economic entity capable of provoking confusion with respect to another producer. It is caused by violation of exclusive rights to products of intellectual labor and means of individualization.

Additionally

The third part of Article 14 of the Federal Law №135 provides for the possibility to send a decision of the antimonopoly authority on violation of the provisions of Part 2 of this norm with respect to the use and acquisition of exclusive rights to a trademark for invalidating the provision of legal protection. The specified act is sent to Rospatent. This opportunity can be used by an interested person whose right was violated by the unfair act of the competitor.