Short Lecture for Training Course on Japanese Intellectual Property System : Unfair Competition Law

Character of the Unfair Competition Law of Japan

Outline

[1] Is the Unfair Competition Law a Intellectual Property Law?
Intellectual Property Law is considered a kind of Competition Law, too.
- ① Intellectual Property Law in Free (or Open) Competition Market
  - ⑴ Idea or Credit as arms to getting advantage in Free Competion Market
    Getting advantage by his/her effort is almost admired.
    So, such Idea or Credit have to be protected in our society.
  - ⑵ How to protect?
    - ⒜ Giving him/her Property about such Idea or Credit (He/She can use his/her own Property)
    - ⒝ Regulate act that infringe his/her Interests of such Idea or Credit
- ② Intellectual Property Law in Law System
  - ⑴ One of the Character of the Unfair Competition Law is Regulating someones Act
  - ⑵ How to regulate?
    - ⒜ By Public Power (Administractive Power) : cf. The Fair Trade Commission on Antimonopoly Law
    - ⒝ By Private Person : Seeking Injunction and/or Compensation for damage by Person who is infringed his/her Interests
- ③ No Property Right but Interests
  - Patent Act : Article 100 (Right to seek injunction)
  - ⑴　A patentee or exclusive licensee may demand a person who infringes or is likely to infringe the patent right or exclusive license to stop or prevent such infringement.
  - Copyright Act : Article 112 (Right to seek injunction)
  - ⑴　The author, the copyright holder, the holder of the right of publication, the performer, or the holder of neighboring rights may demand that persons infringing, or presenting a risk of infringing, on his moral rights of author, copyright, right of publication, or moral rights of performer or neighboring rights, as applicable, cease the infringement or not infringe, as the case may be.
  - Unfair Competition Prevention Act : Article 3 (Right to seek an injunction)
  - ⑴　A person whose business interests have been infringed or are likely to be infringed by unfair competition may seek an injunction suspending or preventing the infringement against the person that infringed or is likely to infringe such business interests.
- ④ Does the Unfair Competition Law reinforce other Intellectual Property Laws? ―― Right in a sense
  
  ⑴ Technical Ideas such as Invention
  Patent → Trade Secret (technical use) [§ 2-⑴-iv～ix]
  
  ⑵ Shape, Patterns, etc. of an Article such as Design
  Design Patent → Configuration of Goods [§ 2-⑴-iii], Indication of Goods [§ 2-⑴-i,ii]
  
  ⑶ Mark used in connection with the Goods or the Services
  Trademark → Indication of Goods [§ 2-⑴-i,ii], Domain Name [§ 2-⑴-xii]
[2] Definitions of “Unfair Competition” and General Clause
- ① Definitions of “Unfair Competition” Act
  Limited List : Any acts don't come under Unfair Competition Act other than listed acts
  - Creating confusion by well-known indication [§ 2-⑴-i]
  - Violating credit of famous indication (free-ride, dilution, polution) [ii]
  - Assigning, etc. goods that imitated the configuration of others' [iii]
  - Unfair acquiring, etc. a trade secret [iv～ix]
  - Assigning, etc. devices, etc. that avoid technological restriction measures [x,xi]
  - Unfair acquiring, etc. domain name(s) (cyber-squatting) [xii], and so on
- ② No General Clause
  Our Unfair Competition Law has no General Clause. But German Law has one.
  - Unfair Competition Law of Germany (Gesetz gegen den unlauteren Wettbewerb) (Rev. 2004)
  - § 3 Verbot unlauteren Wettbewerbs
  - Unlautere Wettbewerbshandlungen, die geeignet sind, den Wettbewerb zum Nachteil der Mitbewerber, der Verbraucher oder der sonstigen Marktteilnehmer nicht nur unerheblich zu beeinträchtigen, sind unzulässig.
    - § 3 Prohibit of Unfair Competition
    - Unfair competition act, that may infringe competitions, and may be disadvantageous for competitor, consumer, or other market participator, is not allowed.
  - ⑴ Advantage Points of No-General-Clause
    - ⒜ It's clear and accurate what kind of act is applicable to Unfair Competition Act.
    - ⒝ It guard against easygoing prevention of Free Competition Acts.
  - ⑵ Disadvantage Points
    - ⒜ It cannot cope with new type of Unfair Competition Acts immediatly. (cannot catch up with change)
    - ⒝ It may cause some gaps of Protections for Information such as Idea, Creation or Credit.

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