safe side. 2. If it is otherwise provided for in other laws or administrative regulations, relevant authorities can also conduct the supervision and inspection in accordance with the provisions in such laws or regulations. What if the provisions conflict with this Law? We suggest that an additional paragraph be added to specify which law or regulation shall prevail when this Law conflicts with other laws or administrative regulations. Article 5 Operators shall not use business identifiers to cause confusion in the market conduct acts of unfair competition as follows: 1) using without permission others’ well-known business identifiers or business identifiers similar to others’ well-known business identifiers, which may cause confusions in the market; 2) conspicuously using their own business identifiers identical or similar to the well-known business identifiers of others, with a purpose of misguiding the public, which may cause confusions in the market; 3) registering or using the registered trademarks, relatively well-known unregistered trademarks, trade names registered trademarks or unregistered well-known trademarks of others as trade names in their enterprise names, with a purpose of misguide the public, which may cause confusions in the market; 4) registering or using shop names or brief names of 1. The use of “cause confusions in the market” in the Review Version to specify the consequences of unfair competition acts has excluded the “likelihood of confusions”. “Cause confusions in the market” is a consequential description. The infringer can take advantage of this provision to defend by claiming that its act “did not cause confusions in the market”. That is contrary to the legislative intention of this Law. Therefore, it is more accurate to replace “cause confusions in the market” with “may cause confusions”, and it also conforms to provisions of the Trademark Law. Clearly defining the “likelihood of confusion” as the manifestation of the unfair competition acts described in this paragraph is conductive to maintaining the market economic order and protecting the legitimate rights and
business identifiers or derogation of others’ business reputation. Market research reports can be used as proof of confusions in the market. For the purpose of this Law, the “relevant public” refers to consumers related to a certain type of commodity or service identifiable by the business identifiers and other operators closely related to the marketing of the commodity or service. 4. Notes for amendments to Item 4: This Item is an unnecessary repetition of Item 1; We included the act of “registering” trademarks and domain names: 1) the amendment (and the following definition of “business identifiers”) is intended to provide the Anti-Unfair Competition Law with a specific legal basis for the “prior rights” as defined in Article 32 of the Trademark Law, especially the “merchandising rights”; 2) the judicial interpretation of the Supreme People’s Court has stipulated that registering but not using a domain name also constitutes infringement. The provisions of the Competition Law shall be in line with this provision. 5. Reasons for adding Item 5: Save Clause: It is to cover other deceptive business identifiers not mentioned in above Items. 6. Providing legal protection for operators’ distinctive overall business image is also in line with the provision of Article 3 of the 2007 Interpretation of the Supreme People’s Court on Issues of Laws Applicable to Hearing Civil Cases over Unfair Competition. 7. Reasons for amendments to Paragraph 3: We suggest adding “association” to the definition of “confusion”. In practice, for those with very well-known business identifiers, consumers may not misunderstand their production source, but may associate the counterfeit
prove that the employees offer or take bribes against the interests of the operator, or the employees offer bribes against the operator’s explicitly specified provisions using their own property, or the operator does not benefit from the employees’ act of offering or accepting bribes, then such act of the employees shall not be deemed as the act of the operator. industries. Therefore, we suggest clarifying in this Article the scope of “public service”, the act of bribery, and the personnel to whom the bribe is offered. In addition, for benefits that should not be gained, the wording of “unlawfully seeking” is more appropriate than “seeking”. Note 2: The legislative purpose of this Law is to protect the healthy development of the socialist market economy, encourage and protect fair competition, prohibit acts of unfair competition, and protect the legitimate rights and interests of operators and consumers. “Unfair competition” as mentioned in this Law refers to acts conducted by operators in violation of the provisions of this Law that will damage the legitimate rights and interests of other operators and disturb the socio-economic order. Therefore, we think that the statutory constitutive elements for commercial bribery must include the subjective intention of the operator to “damage the legitimate rights and interests of other operators and consumers or to disrupt the socio-economic order, and objective results of “causing damages to the legitimate rights and interests of other operators and consumers or disruption of the socio-economic order.” Sometimes, no contracts will be signed for benefits offered between operators. For example, manufacturers may provide dealers with promotion fees or promotion items, which the parties may mention in their annual contract, yet without specifying the amount or details.
We suggest deleting this Article. The reasons are the same as Article 6. In addition, for fines as different as “one to five times” the illegal income, this Article does not provide for any basis or reason for the determination of the fines. This may lead to arbitrary enforcement, which is not conducive to either administration according to law or the market players’ reasonable expectation of the administrative enforcement boundary. Article 20 Where operators violate the provisions of Article 7 of this Law, the supervision and inspection authorities shall order them to stop the illegal act and may, according to circumstances, impose a fine of more than 10% but less than 30% of the illegal income on the briber and bribee of the commercial bribery. Where there is no illegal income or the illegal income is difficult to calculate, a fine of more than 100,000 yuan but less than one million yuan shall be imposed according to the circumstances. Where a crime is constituted, the criminal liability shall be prosecuted according to the law. The illegal income mentioned in the preceding paragraph refers to the amount of the targeted transaction, the opportunity and competitive advantage for which the operator has conducted the commercial bribery to obtain. Note 1: We should make it clear that both the briber and bribee of the commercial bribery shall be punished. We should not just punish the briber but leave the bribee unpunished. Those bribers who voluntarily confess their bribery may be given a lighter punishment. Note 2: We suggest adding the second paragraph to define the concept of “illegal income.” Article 22 In the case of a violation of Article 9 of this Law, the supervision and inspection authorities order for the cessation of the illegal acts and impose a fine of more than three times but less than five times the illegal income; where there is no illegal income or the illegal income cannot be calculated, a fine of more than 100,000 1. The determining of administrative fines shall be based on two different circumstances: those who have illegal income and those who have no illegal income or whose illegal income cannot be calculated. 2. The adjustment made to the order of business