The concept and forms of unfair competition in product markets. The concept and forms of unfair competition Unfair competition in the product market

CHAPTER 1. UNFAIR COMPETITION: CONCEPT AND SIGNS

1. The problem of competition in economic and legal theory

2. Unfair competition as actions aimed at acquiring advantages in entrepreneurial activity

3. Contradiction of acts of unfair competition with the provisions of current legislation, business customs, requirements of integrity, reasonableness, and fairness

4. Legal consequences of unfair competitive actions

CHAPTER 2. FORMS OF UNFAIR COMPETITION

1. Unfair competitive practices regarding information about a competitor and its products

2. Unfair competitive actions related to the sale, exchange or other introduction of goods into circulation with the illegal use of the results of intellectual activity and equivalent means of individualization

3. Unfair competitive practices associated with disruption production process competitor

CHAPTER 3. LEGAL WAYS TO SUPPRESS UNFAIR COMPETITION

1. Features of legal liability for acts of unfair competition

2. Jurisdictional methods of combating unfair competition

3. Non-jurisdictional methods of combating unfair competition

Please note that the scientific texts presented above are posted for informational purposes only and were obtained through original dissertation text recognition (OCR). Therefore, they may contain errors associated with imperfect recognition algorithms. There are no such errors in the PDF files of dissertations and abstracts that we deliver.

The concept and role of competition in product markets

System government regulation economy, formed in all industrialized countries, as a mandatory element provides for the creation of favorable conditions for the development of a competitive environment in the market of goods and services. Competition “rules” a market economy and is a necessary element of it.

Competition is defined by Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition” as rivalry between business entities, in which the independent actions of each of them exclude or limit the ability of each of them to unilaterally influence the general conditions of circulation of goods on the relevant commodity market. market (clause 7, article 4 of the Law of the Law).

Competition in the broad sense of the word is proposed to be understood as the process of competition (struggle) of economic entities for advantages in the market using various methods. In the narrow sense of the word (for legislative purposes), competition can be defined as “the process of competition in the market between economic entities (groups of persons) for achieving advantages in order to obtain the most favorable conditions sale of goods within the limits established by law."

Competition arises if business entities operate in a certain product market based on the principle of rivalry and on the condition that each of them must individually influence the general conditions of such a market.

Fair competition is the competitiveness of economic entities, which actually ensures equal operating conditions for all subjects of market relations without exception and a balance of their interests.

1. Article 8 of the Constitution of the Russian Federation enshrines the fundamental principle of a market economy - freedom of competition.
2. Clause 2 of Art. 34 of the Constitution of the Russian Federation establishes a ban economic activity aimed at monopolization and unfair competition.
3. Article 74 of the Constitution of the Russian Federation prohibits on the territory Russian Federation establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources, recognizing the existence of a single economic space in the state as a necessary condition for maintaining competition.

In order to establish the legal basis for regulating competitive relations and suppressing unfair competition in commodity markets, a number of Laws were adopted: Law of the RSFSR dated March 22, 1991 N 948-1 “On competition and restriction of monopolistic activities in commodity markets”, Federal Law dated August 17, 1995 No. 147-FZ “On Natural Monopolies” and Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”.

Conditions for the emergence of competition in product markets:

1. the presence of a large number of sellers of goods on the market. Competition, in contrast to monopoly, presupposes the existence in the market of several subjects interacting with each other, while a monopolized market, as a rule, is represented by only one subject;
2. freedom to choose the commercial activities of sellers of goods. Each of the sellers can enter into contacts with those market entities and in the order and on such conditions that seem to him most beneficial from a commercial point of view;
3. matching demand with supply. The seller must enter the markets with goods that are provided with consumer demand, and, on the contrary, buyers must have a choice of various goods from different manufacturers. Shortage of goods limits freedom of competition.

Functions of competition in product markets:

1. Regulation function. Competition is designed to regulate the range and quality characteristics of goods in order to achieve their greatest compliance with the requirements of buyers in a particular market. Competition is the most important pricing factor in the market.

2. Function of motivation. Competition, on the one hand, provides sellers with a chance to make a profit greater than their competitors, which is a serious internal incentive for the development of the product market. On the other hand, the seller is constantly exposed to the risk associated with an incorrect assessment market situation, changes in consumer demand and the general economic situation at the macro level, which restrains him from unjustifiably risky trade policies.

Competition allows entrepreneurs to be stimulated to produce products that are of the best quality and price and to reduce production costs. Also, trade in competitive products allows wholesalers to receive the greatest profits in a competitive environment. Otherwise, the business entity suffers losses and is forced out of the market by more successful competitors.

3. Distribution function. Competition not only includes incentives for higher productivity, but also allows income to be distributed among the chain of sellers, intermediaries and buyers in wholesale markets involved in the process of moving a product from producers to final consumers. This is consistent with the competitive principle of reward based on results.

Today, control over the state of the competitive environment in markets is carried out on the basis of Order of the FAS Russia dated April 28, 2010 N 220 “On approval of the Procedure for analyzing the state of competition in the product market” (hereinafter referred to as the 2010 Procedure). The modern procedure for analyzing and assessing the state of the competitive environment is new edition the previously existing Procedure for analyzing and assessing the state of the competitive environment in commodity markets, approved by Order of the FAS Russia dated April 25, 2006 N 108, Order of the MAP of Russia dated December 20, 1996 N 169, and Methodological recommendations to determine the boundaries and volumes of commodity markets, approved by Order of the State Customs Committee of the Russian Federation dated October 26, 1993 N 112. As its positive features, one can note the introduction of stages for determining the characteristics of the commodity market, the organization of a more rigid structure of the analytical report, the introduction of a system of criteria that allows making unambiguous decisions to determine the boundaries of the product market; The categories of seller and buyer, potential seller and buyer, wholesale and retail markets, related markets and vertically integrated business entities that are interchangeable in the production of goods have been clarified. In addition, the provisions of the new Procedure define the conditions that may be recognized as limiting competition, and also clarify what can be considered as a positive effect from transactions in the socio-economic sphere.

In connection with the increasing role of the state in regulating competitive relations in Russia today, the concept of “state competition policy” plays an important role, which is a set of sequential actions carried out by a subject (subjects) in relation to certain objects for a specific purpose, and involves the establishment of mandatory rules supported appropriate mechanisms to ensure compliance with these rules by business entities. The current state of state competition policy is characterized by a number of features:

1. in the structure of Russian government bodies there is no single body that would be responsible for implementing the entire range of measures aimed at creating and developing competition;
2. the functions of the FAS Russia do not include the formation and implementation of competition policy in terms of the creation and development of competition;
3. regulatory legal acts in this regard do not contain specific measures to develop competition and are largely declarative in nature;
4. in the field of competition regulation, the main emphasis is on protective measures Oh.

The main directions of development of the competitive environment today are:

1. active development of competition in product markets;
2. further improvement of mechanisms for protecting competitive relations: improvement of the law on competition, improvement of sanctions for violations in the field of competition, creation of mechanisms for the protection of affected entities;
3. support for small and medium-sized businesses, which directly suffer from high monopolization and oligopolization of the market;
4. increasing the level of product quality;
5. formation of a system of informing market participants about the possibility of using competition legislation to protect their interests, lack of propaganda of market competitive relations.

Stimulating the development of competition in product markets

Depending on the identified reasons for the underdevelopment of competition, the actions of antimonopoly authorities to stimulate competition can be aimed at:

1) increasing the number of business entities operating in a given product market by:

a) reducing barriers to entry into the market, and above all measures to intensify the investment process;
b) promoting the development of interregional and international trade;
c) separation of business entities convicted of anti-competitive actions;
d) assistance to entrepreneurs wishing to enter this product market;
e) making decisions limiting the processes of mergers, agreements between entities operating on the market, etc.;

2) increasing the competitiveness of entities operating in a given product market;

3) limitation of the market potential of market entities, if these entities occupy a dominant position in the market.

Limiting competition in product markets

All types of legal measures that restrict competition can be divided into two large groups: 1) measures that legally restrict activities that may impede the formation of a competitive environment; 2) measures imperatively prohibiting such activities.

Both groups of measures are aimed at developing competition by introducing restrictions on the activities of market entities that may hinder fair competition.

Their significant difference from each other is the different legal regime. Measures limiting activities that impede the formation of competitive relations in the market are in the nature of positive obligations of business entities, which can be expressed in:

1) establishing special rules related to various types of associations of entities in markets that may harm competition (for example, for the activities of groups of persons, their associations or individual species persons on the market, as well as for concluding agreements between them);

1. Group of persons. Within the framework of competition law, the concept of a “group of persons” is considered as a stable formation capable of pursuing a coordinated policy in a particular market.

The concept of a “group of persons” is intended to establish such relationships between market participants that allow them to be considered as a single economic entity with a single economic interest. Qualifying a group of persons as a single economic entity is of great importance, since measures of state antimonopoly regulation can be applied not only to one of its participants as a separate economic entity, but also to all participants in the group of persons.

Article 9 of the Law of the Law establishes a wide list of conditions applied when forming a group of persons, which consists of various types of relations: administrative, contractual, managerial, professional and managerial, related, organizational and legal and mixed, containing elements of the above types of relations. The starting point in this basic respect is the criterion of control of one person over another in various forms: 1) in the form of ownership of a controlling stake; 2) in the form of exercising the functions of the sole executive body; 3) in the form of the possibility of giving mandatory instructions on the basis of an agreement; 4) in the form of appointing an executive person of the company, etc.

Thus, the starting point in defining a group of persons is a vertical relationship based on the principle of control; in such a relationship there are always only two persons - the controller and the controlled.

The Federal Antimonopoly Authority has approved a form for presenting a list of persons included in one group of persons, indicating the grounds on which such persons are included in this group.

The antimonopoly authority exercises state control over economic concentration carried out by a group of persons by reviewing and posting on the official website of the FAS Russia on the Internet a list of persons belonging to one group, based on the above form of the list of these persons.

2. Affiliates. By affiliated persons, the Law on Competition and Restriction of Monopolistic Activities in Product Markets understands individuals and legal entities capable of influencing the work of legal entities and (or) individuals engaged in business activities (Article 4 of the Law (Appendix No. 12)). The concepts of “affiliated persons” and “group of persons” relate to each other as a general to a particular one, since persons can be recognized as affiliated according to other criteria, and not only in connection with their membership in a group of persons. The concept of “affiliated person” is disclosed in the Law on Competition and Restriction of Monopolistic Activities in Product Markets by listing its general characteristics and providing a list of persons classified as affiliated. The general characteristics of affiliated persons include: the composition of affiliated persons, the grounds for affiliation, the degree of dependence of some persons on others and legal form this addiction.

A necessary sign of an affiliate is the existence of a relationship of dependence between a legal entity or individual and an affiliate of this legal entity or individual. This dependence may occur:

1. in case of ownership of a certain part of the authorized capital by a legal entity or individual legal entity, stipulating participation in a management body with voting rights;
2. in the case where an individual, by virtue of his position (for example, a member of the board of directors, CEO society), and a legal entity, by virtue of its legal status(for example, an investment fund manager) have the right to give instructions that are binding on the company and (or) have the opportunity to otherwise determine its actions;
3. in the case of certain family ties between individuals.

Affiliated persons of a legal entity are:

1. a member of its board of directors (supervisory board) or other collegial management body, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body;
2. persons belonging to the group of persons to which this legal entity belongs;
3. persons who have the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions constituting the authorized or share capital, shares of a given legal entity;
4. a legal entity in which this legal entity has the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions constituting the authorized or share capital, shares of this legal entity;
5. If a legal entity is a participant in a financial-industrial group, its affiliates also include members of boards of directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in a financial-industrial group, as well as persons exercising the powers of sole executive bodies of participants in a financial-industrial group. industrial group.

Affiliated persons of an individual carrying out entrepreneurial activities are:

1. persons belonging to the group of persons to which the individual belongs;
2. a legal entity in which a given individual has the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions constituting the authorized or share capital, shares of this legal entity.

2. State control over the activities of market entities

1. State control over economic concentration. In accordance with paragraph 21 of Art. 4 of the Law of the Land Code, economic concentration means transactions and other actions, the implementation of which affects the state of competition.

State control over economic concentration in commodity markets is carried out through the implementation by the antimonopoly authority of the following groups of actions:

Providing preliminary consent of the antimonopoly authority for the creation and reorganization of commercial organizations (Article 27 of the Law of the Law), which are carried out through:

a) mergers commercial organizations;
b) merger of a commercial organization (except for a financial organization) with another commercial organization;
c) creating a commercial organization, if it authorized capital paid for with shares (shares) and (or) property of another commercial organization;
d) the creation of a commercial organization, if its authorized capital is paid for with shares (shares) and (or) property of the financial organization.

Providing preliminary consent of the antimonopoly authority to carry out transactions with shares, shares or property of commercial organizations, rights in relation to commercial organizations (Article 28 of the Law of the Law).

The adoption by the antimonopoly authority of mandatory notifications about the completion of certain categories of transactions established by Art. 30 ZoZK.

The antimonopoly authority exercises control over the activities of a group of persons in the field of economic concentration when making transactions:

a) for the acquisition of voting shares of a joint-stock company or shares in the authorized capital of a limited liability company;
b) upon receipt of ownership, use or possession of fixed production assets and (or) intangible assets of another business entity (with the exception of a financial organization);
c) to acquire rights that allow determining the conditions for an economic entity (with the exception of a financial organization) to carry out entrepreneurial activities, or conditions that allow it to carry out the functions of its executive body.

Article 31 of the Law of the Law allows transactions within a group of persons without obtaining the prior consent of the antimonopoly authority if the following conditions are met in total:

1. transactions and other actions are carried out by persons belonging to the same group of persons;
2. a list of persons included in one group, indicating the grounds on which such persons are included in this group, was submitted by any person included in this group (applicant) to the federal antimonopoly body in the form approved by it no later than one month before the transactions were carried out, other actions;
3. the list of persons included in this group at the time of transactions and other actions did not change compared to the list of such persons submitted to the federal antimonopoly body.

2. State control over competition-limiting agreements of business entities. According to paragraph 1 of Art. 35 of the Law of the Land Code, subjects of trade markets who intend to reach an agreement that can be recognized as permissible in accordance with the Law of the Land Code have the right to apply to the antimonopoly authority with an application to verify the compliance of the draft agreement in writing with the requirements of the antimonopoly legislation, providing the antimonopoly authority with documents and information in accordance with the List , approved by the federal antimonopoly authority.

Within 30 days from the date of receipt of all documents and information necessary for consideration of the application, the antimonopoly authority makes a decision on the compliance or non-compliance of the draft agreement in writing with the requirements of the antimonopoly legislation.

The antimonopoly authority may refuse to approve such an agreement to the applicant in cases where such agreements lead or may lead to:

1. refusal to enter into contracts with certain sellers or buyers (customers) (clause 1 of article 11 of the Law of the Land Code).

The current amended legislation on the protection of competition prohibits “vertical” agreements between business entities if:

1) such agreements lead or may lead to the establishment of a resale price for the goods, with the exception of the case where the seller sets a maximum resale price for the goods for the buyer;

2) such agreements provide for the buyer’s obligation not to sell the goods of an economic entity that is a competitor of the seller. This prohibition does not apply to agreements on the buyer organizing the sale of goods under a trademark or other means of individualization of the seller or manufacturer.

The exception is “vertical” agreements, which, in accordance with Art. 12 Laws of the Land Code are considered acceptable if they are:

1) “vertical” agreements in writing (with the exception of “vertical” agreements between financial institutions) if these agreements are commercial concession agreements;

2) “vertical” agreements between business entities (with the exception of “vertical” agreements between financial organizations), the share of each of which in any product market does not exceed 20%.

Agreements between economic entities that are participants in the wholesale and (or) retail markets are also prohibited. electrical energy(capacity), commercial infrastructure organizations, technological infrastructure organizations, network organizations, if such agreements lead to manipulation of prices at wholesale and (or) retail markets electrical energy (power).

Other agreements between business entities are prohibited (with the exception of “vertical” agreements, which are recognized as permissible in accordance with Article 12 of the Law) if it is established that such agreements lead or may lead to a restriction of competition. Such agreements may include, in particular, agreements:

1. on imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (unreasonable demands for the transfer of financial assets, other property, including property rights, as well as agreement to enter into an agreement subject to the inclusion of provisions in it regarding goods in which the counterparty does not interested, and other requirements);
2. on economically, technologically and otherwise unjustified establishment by an economic entity different prices(tariffs) for the same product;
3. on creating obstacles for other economic entities to access the product market or to exit the product market;
4. on establishing conditions for membership (participation) in professional and other associations.

Individuals, commercial and non-profit organizations are prohibited from coordinating the economic activities of business entities if such coordination leads to any of the consequences specified in clauses 1 - 3 of Art. 11 ZoZK. The provisions prohibiting “vertical” agreements do not apply to agreements between business entities belonging to the same group of persons, if one of such business entities has established control over another business entity or if such business entities are under the control of one person, with the exception of agreements between business entities entities carrying out types of activities, the simultaneous performance of which by one economic entity is not allowed in accordance with the legislation of the Russian Federation.

Illegal control over the activities of business entities can be expressed in the following ways (clause 8 of Article 11 of the Law of the Law): - the ability of an individual or legal entity to directly or indirectly (through a legal entity or through several legal entities) determine decisions made by another legal entity through one or more than one of the following:

1. disposal of more than 50% of the total number of votes attributable to voting shares (shares) constituting the authorized (share) capital of a legal entity;
2. performing the functions of the executive body of a legal entity.

3. State control over price levels in markets. Important function state control competitive environment in commodity markets is the control of price levels for goods. This type of control is necessary to prevent the establishment of monopolistically high and monopolistically low prices. In accordance with Art. 6 ZoZK monopoly at a high price of a product is the price set by an economic entity occupying a dominant position, if this price exceeds the price that, in conditions of competition on a product market comparable in terms of the quantity of goods sold over a certain period, the composition of buyers or sellers of the product and conditions of access, is established by economic entities not included in the buyers or sellers of goods in one group of persons and who do not occupy a dominant position in a comparable product market, as well as if this price exceeds the amount of costs and profits necessary for the production and sale of such goods.

According to Art. 7 of the Law of Law, a monopolistically low price of a product is the price of a product established by an economic entity occupying a dominant position, if this price is lower than the price that, in conditions of competition on a comparable product market, is set by economic entities that are not included in the same group of persons with buyers or sellers of the product and do not occupy a dominant position. position in such a comparable product market, as well as if this price is lower than the amount of expenses necessary for the production and sale of such a product.

In accordance with the 2010 Procedure, the Rules for monitoring the commodity market and conducting economic and statistical calculations are established, based on the results of which interchangeable goods are determined, which may include: 1) analysis of pricing and price dynamics, changes in the volume of demand when prices change (clause 3.8 of the 2010 Procedure ); 2) the procedure for the “hypothetical monopolist test” (clause 3.9 of the 2010 Procedure); 3) calculation of the cross elasticity of demand indicator (clause 3.10 of the 2010 Procedure).

The “hypothetical monopolist test” is carried out to determine the product boundaries of a product market. When it is carried out, a significant and long-term increase in the price of the product under study is considered to be an increase of 5 - 10%, other conditions being equal, and continuing throughout the time interval of the study. When assessing the price level, it matters whether, as a result of its increase, buyers will replace this product with other goods and whether there will be a decrease in sales volume, making such an increase or decrease in prices unprofitable for sellers.

5. Maintaining registers of persons holding a dominant position in the market

In accordance with sub. 8 hours 1 tbsp. 23 of the Law of the Law of the Republic of Kazakhstan, the duties of the antimonopoly authority include maintaining a register of economic entities of the market that have a share in the market specific product in the amount of more than 35% or occupying a dominant position in the market for a certain product, if in relation to such a market other federal laws for the purpose of their application establish cases of recognition of the dominant position of economic entities, as well as a register of persons brought to administrative responsibility for violating antimonopoly legislation. Information included in the specified register is not subject to publication in media mass media and placement on the Internet information and telecommunications network. The procedure for the formation and maintenance of these registers is established by the Government of the Russian Federation. The register is state-owned information resource, and its maintenance is carried out by including in it information about economic entities of the market, as well as excluding relevant information from it and introducing changes to the information contained in it.

The register contains information about:

1. name, legal form and address or location of the legal entity or surname, first name, patronymic, place of residence, date state registration individual entrepreneur;
2. the name of the goods (works, services) produced and (or) sold by the business entity, in the markets of which it has a share of more than 35% or occupies a dominant position;
3. on the interval value of the share of an economic entity in the product market;
4. geographical boundaries commodity market;
5. the number and date of the order of the antimonopoly authority to include information about the business entity in the register.

An economic entity has the right to independently send to the antimonopoly authority an application in any form to include information about itself in the register, as well as to exclude relevant information from the register and make changes to the information contained therein.

Decisions to include information about a business entity in the register, exclude relevant information from the register, or make changes to the information contained in the register are formalized by order of the antimonopoly authority. The register is maintained electronically. The register is maintained by officials of the antimonopoly authority who have the appropriate powers, under conditions that ensure the prevention of unauthorized access to the register.

The antimonopoly authority places the information contained in the register on the official website of the FAS Russia on the Internet.

Requirements for the procedure for enforcement by the antimonopoly authority state function and administrative procedures for the performance by the antimonopoly authority of functions related to maintaining the Register have been established Administrative regulations Federal Antimonopoly Service to perform the state function of maintaining a register of business entities with a market share of a certain product of more than thirty-five percent, which determines the timing and sequence of administrative procedures of the FAS Russia, its territorial bodies and their structural divisions, the procedure for interaction between them, as well as the procedure for interaction between FAS Russia and territorial bodies of FAS Russia with other federal executive authorities and other organizations in the exercise of these powers.

Measures prohibiting activities that may harm competition

1. Prohibition on the abuse of a dominant position by an economic entity. In accordance with Art. 10 of the Law of the Law prohibits actions or inactions of an economic entity occupying a dominant position, the result of which is or may be the prevention, restriction, elimination of competition and infringement of the interests of other persons, including:

1. establishing and maintaining a monopolistically high or monopolistically low price for a product;
2. withdrawal of goods from circulation if the result of such withdrawal was an increase in the price of the goods;
3. imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract;
4. economically or technologically unjustified reduction or cessation of production of goods;
5. economically or technologically unjustified refusal or avoidance of concluding a contract with individual buyers if it is possible to produce or supply the relevant product;
6. economically, technologically and otherwise unjustified establishment of different prices for the same product, unless otherwise established by federal law;
7. creating obstacles to access to the product market or exit from the product market for other economic entities;
8. violation of the pricing procedure established by regulatory legal acts.

2. Prohibition on competition-restricting agreements between business entities. Clause 1 of Art. 11 of the Law of the Law recognizes a cartel and imperatively prohibits agreements between competing business entities, i.e. between business entities selling goods on the same product market, if such agreements lead or may lead to:

1. establishing or maintaining prices (tariffs), discounts, surcharges (surcharges) and (or) markups;
2. increasing, decreasing or maintaining prices at auctions;
3. division of the commodity market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);
4. reduction or cessation of production of goods;
5. refusal to enter into contracts with certain sellers or buyers (customers).

Cartel prohibitions are unconditional and do not provide for exceptions. Any agreement containing the listed conditions is considered an offense from the point of view of the law and entails the application of administrative and criminal penalties. In addition, this article establishes prohibitions that provide for exceptions. For example, paragraph 2 of Art. 11 of the Law of the Land Code prohibits “vertical” agreements between business entities, with the exception of “vertical” agreements, which are recognized as permissible in accordance with Art. 12 of the Law of the Law, if: 1) such agreements lead or may lead to the establishment of a resale price for the goods, with the exception of the case if the seller sets the maximum resale price for the goods for the buyer; 2) such agreements provide for the buyer’s obligation not to sell the goods of an economic entity that is a competitor of the seller. This prohibition also does not apply to agreements on the buyer organizing the sale of goods under a trademark or other means of individualization of the seller or manufacturer.

3. Prohibition on the performance of concerted actions by business entities. According to paragraph 1 of Art. 11.1 The Law of the Land Code, in addition to actions leading to the same consequences as the terms of cartel agreements, also prohibits concerted actions of business entities that are commercial infrastructure organizations, technological infrastructure organizations, network organizations, and concerted actions of competing business entities, if it is established that such concerted actions lead to restriction of competition. Such concerted actions may include actions to: 1) impose contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (unreasonable demands for the transfer of financial resources, other property, including property rights, as well as agreement to enter into an agreement subject to introducing into it provisions regarding goods in which the counterparty is not interested, and other requirements); 2) economically, technologically and otherwise unjustified establishment by an economic entity of different prices (tariffs) for the same product; 3) creating obstacles for other economic entities to access the product market or exit the product market.

Prohibitions on concerted actions are limited by the condition of the market share occupied by business entities performing such actions. In accordance with paragraph 5 of Art. 11.1 of the Law of the Law prohibitions on concerted actions do not apply to concerted actions of business entities whose total share in the product market does not exceed 20% and the share of each of which in the product market does not exceed 8%.

3) incorrect comparison by an economic entity of the goods produced or sold by it with goods produced or sold by other economic entities.

Such an action indirectly discredits the competitor. This concept should include any tactless comparison, as well as a comparison that contradicts the rules of ethics and decency. At the same time, the determining criterion for assessing the admissibility of a comparison from the point of view of tact is proposed to be its compliance with generally accepted rules of integrity;

4) sale, exchange or other introduction into circulation of goods, if the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works, services were used illegally.

The listed actions by their nature represent counterfeit actions aimed at gaining economic advantages in competition. A counterfeit product is a product that is an unauthorized fake. According to paragraph 4 of Art. 1252 of the Civil Code of the Russian Federation in the case where the production, distribution or other use, as well as the import, transportation or storage of tangible media in which the result of intellectual activity or a means of individualization are expressed, lead to a violation of the exclusive right to such a result or to such a means, such tangible media are considered counterfeit. Within the meaning of the Law of Law, the consequences of counterfeiting activities are real or potential losses caused to competitors, or real or potential harm caused to their business reputation;

5) illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law. These actions are aimed at depriving a competitor of the opportunity to obtain commercial benefits by disclosing information that it has deliberately concealed. At the same time, it is very important that the concealment of information by a competitor does not constitute an offense and does not violate the interests of other market participants and end consumers. The trade secret regime in Russian legislation is regulated by the norm of Ch. 75 “The right to a production secret (know-how)” of the Civil Code of the Russian Federation, the Federal Law “On Trade Secrets” and the Law of the Law. Under trade secret according to sub. 1 tbsp. 3 Federal Law“About a trade secret” is understood as a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits. By its legal nature, a trade secret is a special type of prohibitive legal regime.

A feature of information constituting a trade secret is its ability to increase benefits from commercial activities if such information is hidden. Therefore, its disclosure, disclosure or use deprives the owner of the information of the opportunity to obtain what he could count on, subject to the preservation of a trade secret. An unscrupulous competitor gains an advantage in this way, which is the subject of the prohibition of this clause of the Law of the Law.

In order to increase the efficiency of state control over compliance with the antimonopoly legislation of the Russian Federation in terms of unfair competition, the FAS of Russia approved the Regulations on the Expert Council on the Application of Antimonopoly Legislation in terms of unfair competition under the Federal Antimonopoly Service. In accordance with this document, the main tasks Expert Council in particular are:

1. legal examination of the actions of an economic entity on the commodity market;
2. assessment of the actions of a business entity for compliance with business customs, principles of integrity, reasonableness or fairness;
3. examination of information disseminated by an economic entity regarding a competitor, from the point of view of its compliance with reality;
4. assessing the impact of information on consumers of any product;
5. development of recommendations for improving state control over compliance with antimonopoly legislation in terms of protection against unfair competition;
6. preparation of proposals for improving antimonopoly legislation in terms of protection against unfair competition.

3. Prohibition on actions of state and municipal bodies that may harm competition

In Art. Art. Articles 15 and 16 of the Law of the Land Code formulate prohibitions on restricting competition in the field of economic management. In this case, state and municipal entities are considered as potential subjects of law, which, due to their exclusive position of power and advantage, can act as restraining factors for the creation of a normal competitive environment. State and municipal entities can have such an influence on competition by: 1) adopting acts restricting competition; 2) committing actions or deliberate inaction that may harm competition; 3) their conclusion of agreements that may limit competition; 4) their commission of concerted actions that negatively affect competitive environment markets.

In this regard, Art. 15 of the Law of the Law prohibits federal executive authorities, state authorities of constituent entities of the Russian Federation, local government bodies, other bodies or organizations performing the functions of these bodies, organizations involved in the provision of state or municipal services, as well as state extra-budgetary funds, the Central Bank of the Russian Federation, adopt acts and carry out actions that lead or may lead to the prevention, restriction, elimination of competition, including the following:

1. imposing restrictions on the creation of economic entities in any field of activity, as well as establishing prohibitions or imposing restrictions on the implementation of certain types of activities or the production of certain types of goods;
2. unreasonable interference with the activities of business entities, including by establishing requirements for goods or business entities not provided for by the legislation of the Russian Federation;
3. establishing prohibitions or introducing restrictions regarding the free movement of goods in the Russian Federation, other restrictions on the rights of business entities to sell, purchase, otherwise acquire, exchange goods;
4. giving instructions to business entities on priority deliveries of goods for a certain category of buyers (customers) or on concluding contracts as a priority;
5. establishing for purchasers of goods restrictions on the choice of business entities that provide such goods;
6. providing the business entity with priority access to information;
7. provision of state or municipal preferences in violation of the requirements established by Ch. 5 ZoZK;
8. creation of discriminatory conditions;
9. establishment and (or) collection of payments not provided for by the legislation of the Russian Federation when providing state or municipal services, as well as services that are necessary and mandatory for the provision of state or municipal services;
10. giving instructions to business entities to purchase goods, except for cases provided for by the legislation of the Russian Federation.

The law also prohibits granting state and municipal authorities additional powers, the implementation of which may lead to the prevention, restriction, or elimination of competition (Clause 2 of Article 15 of the Law of the Law). Also, the Law of the Land Code prohibits state and municipal entities from combining their functions with the functions of economic entities of the market (clause 3 of Article 15 of the Law of the Law). Some types of agreements and concerted actions of government and municipalities and subjects of commodity markets can also lead to the prevention, restriction, and elimination of competition. In this regard, Art. 16 of the Law of the Law prohibits such agreements that contribute to: 1) increasing, decreasing or maintaining prices; 2) economically, technologically and otherwise unjustified establishment of different prices for the same product; 3) division of the commodity market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold, or the composition of sellers or buyers; 4) restriction of access to the product market, exit from the product market or elimination of economic entities from it.

Send your good work in the knowledge base is simple. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Similar documents

Definition of the concept of "imperfect competition". Methods of fair and unfair competition. Types, purposes and main features imperfect competition. a brief description of each of the methods of protection against unfair competitive actions.

test, added 09/13/2010


Unfair competition as a violation of the rules and norms of competition, assessment of its place and importance in the modern market, ways to combat this negative phenomenon in the economy. The concept and content of a trade secret, means and features of its protection.

test, added 07/27/2013


Characteristics of unfair competition - actions in competition aimed at achieving or providing unlawful advantages that violate the legal rights of consumers. Features of unfair advertising and legal norms governing it.

test, added 03/26/2010


The concept and essence of competition. Functions of competition: regulation; motivation; distribution; control. Fair and unfair competition. Price manipulation as a traditional form of competition. Positive features of competition.

abstract, added 12/03/2010


general characteristics competition. Unfair competition: national and international legal aspects. Comparative characteristics antimonopoly legislation of Belarus and Russia. Control of economic concentration. Problems of the legal field.

thesis, added 03/06/2014


The concept and essence of competition. What is competition? Market competitiveness. General principles of a company's behavior in the market. Types and types of competition. Perfect competition. Monopoly. Oligopoly. Antimonopoly policy. Competition in Russia.

course work, added 04/09/2004


Concept, types, essence of competition and its significance for economic development. Economic assessment current state competition. The market, the reasons for its emergence and character traits. Negative impact of imperfect competition on the market.

course work, added 04/01/2011

M. Zalesskaya, lawyer at SAB "Law and Business".

In the nineties of the 20th century, many laws and regulations were adopted in Russia in various fields of activity, proclaiming the need to combat unfair competition<*>. It can be stated that the very phrase “unfair competition” has ceased to be unusual for the legislator (and is sometimes interpreted very broadly<**>). Publications devoted to the issue of unfair competition are also appearing more and more often. However, a common understanding of what unfair competition is, what its consequences for society in a given case may be, and how more successfully one can defend against it has not yet been formed.

<*>See, for example: Federal laws "On precious metals and precious stones" (Article 13), "On state regulation of the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products" (Article 5), "On participation in international information exchange" (Articles 4, 13), " On state regulation of foreign trade activities" (Article 29), etc.
<**>Thus, according to Article 3 (clause 2) of the Federal Law “On Science and State Scientific and Technical Policy”, “state authorities of the Russian Federation, in accordance with this Law, guarantee subjects of scientific and (or) scientific and technical activity protection from unfair competition” (emphasis added. - M.Z.).

Let's try to analyze modern measures to prevent and suppress unfair competition in product markets, taking into account the peculiarities of Russian legal regulation in this area.

Formally, the USSR assumed obligations to protect against unfair competition. On July 1, 1965, the Soviet Union acceded to the Paris Convention for the Protection of Industrial Property of March 20, 1883 in all its editions and ratified its Stockholm version of 1967 on September 19, 1968.<*>

<*>See: Boguslavsky M.M. International private law. M.: International relationships, 1989. S. 262 - 263; Vienna Convention on Contracts for the International Sale of Goods. A comment. M.: Legal literature, 1994. P. 116.

One of the industrial rights enshrined in the Paris Convention is the right to protect against unfair competition, which is considered to be “any act of competition contrary to fair customs in industrial and trade affairs" (Art. 10-bis).

However, until the beginning of the 90s, accession to the Convention did not entail any fundamental or significant changes in the existing law, since the Paris Convention gives each of the participating countries complete freedom to legislate in this area in accordance with its legislative traditions and economic needs"<*>.

<*>See: Boguslavsky M.M. International protection of rights to inventions // Soviet Yearbook international law. 1964 - 1965. P. 239.

The abandonment of “command economy” methods in the early 90s of the 20th century in the USSR necessitated the development of a set of laws and regulations aimed at promoting the development of effective competition and, in particular, suppressing unfair competition<*>. However, this work stopped due to changes in the socio-political situation and the collapse of the Soviet Union.

<*>See, in particular: Resolution of the Council of Ministers of the USSR dated August 16, 1990 N 35 “On measures to demonopolize the national economy”; Fundamentals of civil legislation of the USSR and union republics of May 31, 1991 (clause 3 of article 5). At the same time, the Fundamentals provided that “measures to combat unfair competition are established by legislative acts” (clause 3 of article 5).

The Russian Federation not only continued to improve its domestic legislation taking into account the development of market relations, but also, as the legal successor of the USSR, assumed obligations to further develop international legal regulation of competitive relations, primarily at the level of the Commonwealth of Independent States.

Thus, on December 23, 1993, in order to determine the legal basis for preventing, limiting and suppressing monopolistic activities and unfair competition of business entities within the framework of the common economic space, the CIS countries Agreement “On the Implementation of a Coordinated Antimonopoly Policy” was concluded.<*>. Clause 3 of Article 3 of this Agreement contains a prohibition on unfair competition and leads open list possible forms of its implementation. Clause 4 of this article provides that “decisions, agreements or actions prohibited by this article are recognized as invalid and have no legal force".

<*>Bulletin of International Treaties. 1994. No. 3. The Agreement on the Implementation of a Coordinated Antimonopoly Policy dated January 25, 2000 has now entered into force.

The International Agreement on Measures for the Protection of Industrial Property and the Creation of an Interstate Council for the Protection of Industrial Property, signed by nine CIS member countries on March 12, 1993, is also intended to promote the development of fair competitive relations.

The development of Russian competition legislation is also stimulated by the obligations assumed by the Russian Federation in connection with the signing of the Partnership and Cooperation Agreement on June 24, 1994, establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their member states, on the other<*>.

<*>Collection of legislation of the Russian Federation. 1998. N 16. Art. 1802.

The Agreement states that an important condition for strengthening economic ties between Russia and the Community is the convergence of legislation. Russia strives to gradually achieve compatibility of its legislation with Community legislation. Requirements for legislative approximation apply, in particular, to competition rules, protection environment, protection of consumer rights (Article 55).

According to part 4 of Art. 15 of the Constitution of the Russian Federation, generally recognized principles and international treaties of the Russian Federation are integral part its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply. Enshrining this provision in the Constitution contributes to the maximum extent to the “harmonization” of domestic Russian legislation and international law.

The Constitution of the Russian Federation contains the basic principles for regulating competitive relations in the Russian Federation. In Art. 34 enshrines the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. At the same time, part two of this article establishes that “economic activities aimed at monopolization and unfair competition are not permitted” - i.e. actions that violate freedom of economic activity. In fact, this article, characterizing the economic activity of an individual as a manifestation of his personal freedom in the economic sphere<*>, establishes in relation to this area the general principle of human existence in society: the exercise of the rights and freedoms of man and citizen should not violate the rights and freedoms of other persons (clause 3 of Article 17 of the Constitution of the Russian Federation).

<*>Andreev V.K. Commentary to Art. 34 of the Constitution of the Russian Federation in the book. "Constitution of the Russian Federation. Commentary" / Under general ed.. Topornina B.N., Baturina Yu.M., Orekhova R.G. M.: Legal literature. 1994. P. 198.

The organizational and legal basis for preventing, limiting and suppressing monopolistic activities and unfair competition in commodity markets in the Russian Federation are defined in the RSFSR Law of March 22, 1991 N 948-1 “On Competition and Limitation of Monopolistic Activities in Commodity Markets”<*>(hereinafter referred to as the Competition Law).

<*>Gazette of the Congress of People's Deputies and the Supreme Soviet of the RSFSR. 1991. N 16. Art. 499. The latest changes to the Law were made by Federal Law No. 3-FZ of January 2, 2000.

The Competition Law contains a special section III “Unfair competition”. It consists of a single article 10 “Forms of unfair competition”. The article establishes the requirement to prevent unfair competition and provides an open list of its forms<*>.

<*>This list was significantly amended by Federal Law No. 83-FZ of May 25, 1995 “On Amendments and Additions to the RSFSR Law “On Competition and Restriction of Monopolistic Activities in Product Markets” in anticipation of the adoption of the Federal Law “On Advertising”.

The improvement of competition legislation and the practice of its application also necessitated the introduction of the concept of “unfair competition” into the Competition Law (Article 4). These are “any actions of business entities aimed at acquiring advantages in business activities that contradict the provisions of the current legislation, business customs, the requirements of integrity, reasonableness and fairness and may cause or have caused losses to other competing business entities or damage their business reputation.” The formulation of the concept of “unfair competition”, taking into account the fact that in Art. 10 contains an open list of its forms, which is extremely important for assessing the actions of competitors in product markets and choosing adequate protective measures.

Provisions directly aimed at unfair competition are also contained in Federal Law No. 108-FZ “On Advertising” of July 18, 1995.<*>

<*>Collection of legislation of the Russian Federation. 1995. N 30. Art. 2864.

This is due to the fact that advertising legislation, one of its goals having protection from unfair competition (paragraph two of paragraph 1 of Article 1 of the Advertising Law), contains a number of clearly defined requirements for advertising. Violation of these requirements (for example, placement of advertising in violation of the requirements for the order and method of its placement, for the content of advertising, including failure to disclose some essential information that influences the consumer’s choice) leads to the receipt of unjustified competitive advantages compared to a bona fide business entity.

Along with the above legislative acts, which to one degree or another deal with unfair competition, for effective protection in this area may be extremely important legal acts, not directly aimed at regulating relations related to unfair competition. This applies, first of all, to the Civil Code of the Russian Federation, which contains a number of significant provisions that promote the development of fair business activities of equal business entities and the prevention of unfair competition.

So, in paragraph 1 of Art. 1 of the Civil Code of the Russian Federation contains the basic principles of civil legislation, establishing the equality of participants civil rights relations, the inviolability of property (without distinguishing its individual types), freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, their judicial protection.

The norms of Art. also play a significant role. 5 of the Civil Code of the Russian Federation, which attaches importance to the source of law to customary business practices and determines the conditions for its application, and Art. 6 of the Civil Code of the Russian Federation on the application of civil legislation by analogy. Of particular interest is clause 2 of Art. 6 of the Civil Code of the Russian Federation, which provides that the rights and obligations of the parties, if it is impossible to use an analogy of law, are determined based on the general principles and meaning of civil legislation (analogy of law) and the requirements of good faith, reasonableness and fairness.

Due to the fact that unfair competition is often carried out in the form of actions that, although not directly violating the law, appear to be flawed from the point of view of business customs, as well as the requirements of integrity, reasonableness and fairness, these articles can be extremely important in proving the fact unfair competition.

Particular attention should be paid to Art. 10 of the Civil Code of the Russian Federation, establishing the limits of the exercise of civil rights. In accordance with paragraph 1 of this article, actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed.

Moreover, in case of non-compliance with the requirements provided for in paragraph 1 of this article, a court, arbitration or arbitration tribunal may refuse to protect a person’s rights (Clause 2 of Article 10 of the Civil Code of the Russian Federation). This rule may turn out to be extremely important if an unscrupulous competitor defends unjustifiably obtained business advantages in court or arbitration (in arbitration, ad hoc arbitration, permanent commercial arbitration, etc.).

At the same time, it seems that the main advantage of Art. 10 of the Civil Code of the Russian Federation in relation to the fight against unfair competition is to use it not to protect a violated right - the very concept of unfair competition, as contrary to the norms of integrity, reasonableness and fairness, already contains an almost always applicable element of the offense. Role of Art. 10 Civil Code in defense, according to the apt expression of E. Marquart<*>, “quality of competition”, is important for preventing violations by establishing certain conditions for the exercise of civil rights by business entities.

<*>Marquart E. Comparative analysis regulation of unfair competition in the laws of Germany, the European Union and the Russian Federation. Abstract of dissertation. for the degree of candidate of legal sciences. M., 1998. P. 8.

Obviously, another norm of clause 1 of Art. can play the same role in countering unfair competition. 10 of the Civil Code of the Russian Federation: “The use of civil rights to restrict competition, as well as abuse of a dominant position, is not permitted.” This condition can provide a more objective and complete assessment by business entities themselves of the actions they carry out in the course of competition.

At the same time, the direct use of this norm to protect against unfair competition seems far from certain.

Consider one of the many similar disputes resolved arbitration court according to Art. 10 of the Civil Code of the Russian Federation, assessed as the application of this article to suppress unfair competition leading to restriction of competition.

A certain Russian company registered a world-famous trademark of a foreign company with Rospatent before this company began operating on the Russian market. When a foreign company and its official Russian distributor began to develop the Russian market, they were brought a claim to stop the violation of the exclusive rights to the plaintiff’s trademark registered in Russia, including advertising, sale, storage, import of products using this trademark.

During the trial, it turned out that the plaintiff did not intend to use the trademark as a designation capable of distinguishing his goods from similar goods of other entrepreneurs.

The plaintiff’s goal, as follows from extensive correspondence with the defendant, was to create obstacles to the activities of a foreign company and its distributor in Russia and to receive money for removing these obstacles by selling it the rights to its own trademark, which it had used for many years in other countries<*>.

<*>Totyev K. Suppression of unfair competition // Economics and life. M.: Lawyer. 1999. N 23. P. 6.

At first sight, this example confirms the above thesis that: a) unfair competition leads to restriction of competition and b) unfair competition can be suppressed on the basis of the norm of paragraph 1 of Art. 10 of the Civil Code of the Russian Federation on preventing the use of civil rights to restrict competition. At the same time, a thorough analysis of the merits of the case allows us to conclude that unfair competition - i.e. actions contrary to the law, business customs, etc. and aimed at acquiring advantages in entrepreneurial activity - was absent in this case. The plaintiff did not carry out and did not intend to carry out business activities to produce goods under the defendant’s trademark, and accordingly, was not his competitor. In the case under consideration, there was an abuse of the plaintiff’s monopoly rights as the owner of exclusive rights.

At the same time, despite the fact that in this case there was no unfair competition, the study and analysis of this and similar cases related to the application of Art. 10 of the Civil Code of the Russian Federation, can play a big role in the legal education of entrepreneurs and, in particular, in introducing rules of fair business conduct into the business environment.

The issue of unfair competition is also addressed to one degree or another in the articles of part one of the Civil Code of the Russian Federation, devoted to intellectual property, official and commercial secrets, intangible benefits and compensation moral damage etc., and in part two of the Civil Code of the Russian Federation - in Chapter 54 “Commercial concession”, and in Chapter 59 “Obligations resulting from harm” (in particular in paragraph 4 “Compensation for moral damage”).

It may be advisable to build protection against unfair competition taking into account the complex of legislation on intellectual property.

According to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, the grounds for the emergence and procedure for exercising exclusive rights to the results of intellectual activity (intellectual property) are determined by civil legislation.

In the third part of the Civil Code of the Russian Federation, which has been developed over several years, a special section is devoted to exclusive rights (intellectual property). Part one of the Civil Code (Articles 128, 129, 138 of the Civil Code of the Russian Federation) contains a number of fundamental norms with the help of which the exclusive rights of the copyright holder to use the results of intellectual activity were returned to Russian civil circulation after decades of exclusive rights of the state in this area.

Relations regarding exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, products, works, services are regulated, in addition to the Civil Code of the Russian Federation, by other laws. For example, "Patent Law of the Russian Federation"; Laws of the Russian Federation “On Trademarks, Service Marks and Appellations of Origin of Goods”, “On Legal Protection of Electronic Computer Programs and Databases”; "On the legal protection of integrated circuit topologies"; "On copyright and related rights"<*>.

<*>Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1993. N 42. Art. 2319; N 42. Art. 2322; N 42. Art. 2325; N 42. Art. 2328; N 32. Art. 1242.

Regulation of relations in the field of exclusive rights to the results of intellectual activity is also carried out by decrees of the President of the Russian Federation, government resolutions, acts of Rospatent, the State Customs Committee, etc.

It should be noted that civil law scholars, who have been studying the issue of exclusive rights to intellectual property for a long time, persistently oppose the inclusion of relations associated with the illegal use of such rights among the forms of unfair competition, considering this as an “unreasonable expansion of the functions” of antimonopoly authorities.

At the same time, legislation devoted to certain types of intellectual property does not set itself the task of ensuring the quality of competition. Therefore, many features that prevent a conscientiously operating business entity from receiving the profit due to it in the market due to the unfair use of civil rights by a competitor are not taken into account in law enforcement activities on intellectual property.

IN last years In Russia, the development of legislation on information has begun, which, as an object of civil rights, is legislatively enshrined in Art. 128 Civil Code of the Russian Federation.

Protection against unfair competition is often associated with ensuring reliable safety and proper use of information, especially confidential information. In Art. 139 of the Civil Code of the Russian Federation legally defines the conditions for classifying information as a trade secret. According to this article, it constitutes a trade secret in the case “when information has actual or potential commercial value due to its unknown to third parties, there is no free access to it on legally and the owner of the information takes measures to protect its confidentiality.

Trade secrets as information of a confidential nature are protected in Decree of the President of the Russian Federation of March 6, 1997 N 188 “On approval of the List of information of a confidential nature”, in which confidential information includes, in particular, “information related to commercial activities, access to which is limited in accordance with the Civil Code of the Russian Federation and federal laws (trade secrets)."

The legal regime for the creation, possession and use of documented information is contained in the Federal Law of the Russian Federation of February 20, 1995 N 24-FZ "On Information, Informatization and Information Protection" and in the Federal Law of the Russian Federation of July 4, 1996 N 85-FZ "On participation in international information exchange."

The RSFSR Law of February 7, 1992 “On the Protection of Consumer Rights” allows us to more fully assess the nature of competitive actions of producers and sellers of goods (works, services) for the population.<*>(for example, regarding the fulfillment by the seller of the obligation to provide the necessary and reliable information to ensure the possibility of a competent selection of goods - Articles 8, 10 of the Law). It should be noted that in many countries, consumer protection legislation is part of the legislation on unfair competition.

<*>Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1992. N 15. Art. 766. Latest edition - Federal Law of December 17, 1999 N 212-FZ.

The problem of consumer protection in the information field is being developed in more and more detail, since the quantity and variety of information circulating on the market is constantly growing. For the most part, this information is intended to encourage the consumer to purchase a particular product or service; The task of providing him with sufficiently complete and reliable information to make an objective choice is usually not set. Concealing information in these cases may not only be a violation of consumer rights, but also a manifestation of unfair competitive actions (for example, if one seller in an advertisement household appliances indicates that he sells the products of a subsidiary located, for example, in Southeast Asia, but the other seller is silent about this, creating the impression that he is selling the products of the parent company. Naturally, with equal prices for products, more consumers will purchase “mother” assembly equipment).

Issues of informing consumers are regulated both in the Law on the Protection of Consumer Rights and (in relation to advertising information) in the already mentioned Law on Advertising, which has received increasing attention in recent years. This is due to the enormous power that advertising has acquired, especially through electronic media.

Rules aimed at ensuring the interests of the consumer are contained, in addition to the Law on the Protection of Consumer Rights, also in other legislative acts. In particular, they are available in sections of the Civil Code of the Russian Federation devoted to purchase and sale agreements and household contracts, in the Law on Advertising, the Law on Competition, the Law on Natural Monopolies, etc.

Thus, legal regulation Relations related to unfair competition and related problems are devoted to a considerable part of modern Russian legislation.

However, despite almost ten years of existence of rules aimed at protecting against unfair competition, the volume of law enforcement practice in this area is still very small. It should be noted right away that it is almost impossible to obtain information about the exact number of cases of disagreements between business entities related to unfair competition, including cases of their settlement through negotiations and mutual concessions.

It is not yet possible to accurately determine the number of lawsuits related to unfair competition. In the statistics of the activities of arbitration courts, for example, this category of disputes is missing, and they are part of other categories of disputes: on the protection of intellectual property rights (exclusive rights to trademarks, trade names, etc.), on the protection of business reputation, disputes in the field of advertising. In this case, for example, the protection of business reputation may or may not be associated with encroachment on it by competitors. A similar situation (in relation to business reputation individuals who could suffer as a result of unfair competition) also occurs in courts of general jurisdiction.

While in judicial practice There are only isolated cases of mention of unfair competition, and then in a negative sense, when the organization did not apply for protection from unfair competition or such a statement was ignored by the court.

In the practice of antimonopoly authorities, there has been an increase in the number of requests from business entities to suppress the actions of unscrupulous competitors: from several dozen per year in the mid-90s to several hundred per year at the end of the decade. At the same time, the head of the MAP of Russia I.A. Yuzhanov, in his article devoted to the work of the Ministry and its territorial departments in implementing antimonopoly legislation, indicated that the number of allegations of unfair competition in 1999 decreased slightly compared to 1998<*>.

<*>Yuzhanov I. Practice of application of antimonopoly legislation // Russian justice. 2000. N 5.

Meanwhile, any economic newspaper or magazine provides facts of unfair competitive actions of one kind or another, often very specific. Thus, the possibility of economic entities of different forms of ownership proclaimed by the Constitution to function in one market (and, obviously, according to the same rules for all) has as one of its goals the creation of conditions for the development of competition among free entrepreneurs.

At the same time, at present, among supposedly equal subjects, there are many who are “more equal than all others” - i.e. having competitive advantages not only arising from more high level development, but also associated with additional unspoken, informal capabilities of their leaders to resolve various problems<*>.

<*>See, for example: “In the shadow of the trade tent” // Business Moscow today. 1996. N 31. P. 4.

Violation and weakening of the principle of equality by advantages and benefits unjustifiably appropriated by certain groups and strata, including the new bureaucracy merging with mafia structures in business, nationalist circles, and speculative capital<*>, sometimes leads to distortion of competition, implementation of unfair competition using wide range opportunities to influence government and management bodies on business.

<*>See Topornin B.N. Introductory article to the Commentary on the Constitution of the Russian Federation. M.: Legal literature. 1994. P. 16.

At the same time, an inefficiently operating organization, thanks to personal contacts, can receive significant advantages for doing business, push aside a domestic competitor, and after some time find itself absorbed by a competing foreign corporation as it moves into the Russian market.

This problem is very relevant, since generally accepted principles business ethics are not always observed - a number of countries, in order to encourage their companies to gain a foothold in new markets, legally allow for very unique methods of action for them.

Thus, while British Petroleum, being the main shareholder of one of the Russian oil companies, removed from its management Russian businessman, considering it unacceptable to work with local criminals and INFORMAL FINANCING OF REGIONAL OFFICIALS (emphasis mine - M.Z.), in the United States from the list of restrictions on payments to foreign officials contained in the Comprehensive Trade and Competitiveness Act of 1988 (The Omnibus Trade & Competitivenes Act, 1988), excluded so-called. "grease payments" - "grease payments", or, in common parlance, bribes that can be paid to any foreign official in order to expedite (ensure) the execution of routine government action. According to American scientists, in this case, “business does not receive anything to which it would not have the right one way or another.”

It seems that there is no particular need to explain that the case of unfairly obtaining advantages in business over a competitor who does not have similarly secured “powers” ​​and the means to implement them in this case becomes more than a possibility - almost a reality.

Thus, currently in Russia guaranteed freedom of economic activity is not always achievable. The task of supporting competition as independent actions of business entities that effectively limit the possibility of their unilateral influence on the conditions of circulation of goods in such conditions is not fully resolved. In modern conditions, what is enshrined in Part 1 of Art. 34 of the Constitution of the Russian Federation, the right of every person and citizen to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.

Let us leave aside this type of unfair competition, effective protection against which, despite many years of fighting corruption, has not yet been developed. At the same time, even in cases where unfair competition could be suppressed very effectively, appropriate actions are often not taken. Let's try to determine the main reasons for this.

One of the most common reasons - “reluctance to get involved” - is given by many business entities. The fact is that the market capacity of a particular product and the presence of unoccupied market niches allow victims to forgive their unscrupulous competitors for the time being. However, obviously, the continuation of this situation is a matter of time.

In addition, one of the reasons is, unfortunately, the continuing lack of legal literacy of entrepreneurs. There are often situations when the protection of a violated right is based on a rough assessment by the head of the proposed ways of protection in the absence of qualified legal analysis possible consequences development of one or another course of action. In this regard, a path of action that approximately fits the scheme is chosen, which does not sufficiently take into account existing judicial practice and the accepted approach of judges.

Indeed, proving the fact of unfair competitive actions, and in particular the fact and amount of losses caused by such actions, may be somewhat more difficult than directly indicating the fact of using someone else’s trademark or a mark confusingly similar to it. This is due, in particular, to the current insufficient development of private institutions for monitoring the state of various markets, the lack of experts of sufficient qualifications who could conduct serious research into the extent to which the consumer market for the goods of the affected entity has narrowed with the production of products by an unscrupulous competitor, etc.

At the same time, with proper study of the materials in preparation for applying for judicial protection, it can turn out to be much more convincing and not only reduce the time required for consideration of the dispute, but also make it possible to achieve a real restoration of the quality of competition, which in most cases is of significant importance for both business entities and and for consumers.

Above, another significant circumstance was indirectly mentioned that prevents applying for legal protection - the difficulty of qualifying this phenomenon as unfair competition, the difficulty of collecting evidence.

Finally, it is also very significant that the applied measures of liability for unfair competition are not effective enough.

Article 10 of the Competition Law provides the following open list of forms of unfair competition.

Dissemination of false, inaccurate or distorted information that could cause losses to another business entity or damage its business reputation.

The inclusion in modern civil legislation of a condition for the protection of business reputation (Article 152 of the Civil Code of the Russian Federation) is very important for normal market relations developing in Russia, since, as the Plenum of the Supreme Court of the Russian Federation indicated in its Resolution No. 6 of April 25, 1995 “On Amendments” and additions to some decisions of the Plenum of the Supreme Court of the Russian Federation", the business reputation of legal entities is one of the conditions for their successful activities.

Typically, the dissemination of this kind of defective information is aimed at discrediting a competitor in order to attract consumers to the competitor at the expense of the competitor. own goods or services.

However, disseminating negative information does not always have such a goal.

For example, in the practice of antimonopoly authorities there have been situations when one organization distributed different ways(independently and through dummies, in leaflets, orally, etc.) negative information about the activities of the management of another organization, distorted the results of the activities of its team. This was carried out in order to buy up the shares of participants in the victim organization.

Obviously, in such cases, there is a duality of the situation - these actions may or may not be a manifestation of unfair competition (for example, the purchase of shares may be carried out in order to oust a competitor, or perhaps to acquire the organization by a new owner who intends to continue operating in the same markets ).

You should keep in mind the condition of the Russian legislator, enshrined in the concept of unfair competition, about the existence of competitive relations between the injured party and the violator.

In the same case, if the damage to business reputation is not caused by a competitor fighting for the consumers of the injured company, this offense is hardly a manifestation of unfair competition. There is hardly any reason to expand the list of subjects of this type of offense, unless the interdependence between these actions of persons who are not competitors (for example, consumer societies, the media, etc.) and the receipt of advantages by competitors can be discovered and proven.

The abolition of this requirement in the legislation of a number of countries has allowed for a broader approach to the issue of defamation: not only competitors, but also consumer associations or the media may then be subject to unfair competition provisions if they disseminate information that could discredit a particular business entity.

However, in Russian conditions Such actions should be considered on the basis of Art. Art. 150 - 152 of the Civil Code of the Russian Federation.

Misleading consumers regarding the nature, method and place of manufacture, consumer properties, and quality of the product.

When an entrepreneur sells his goods of lower quality as analogues (for example, in the case of generic pharmaceuticals) of a competitor's high-quality goods, both consumers and manufacturers suffer. Reporting high quality, unique origin, etc. properties of their goods, competitors force consumers to mistakenly purchase some goods that are not of the quality they expected, and at the same time reduce the sales of goods of the enterprise that enjoys well-deserved fame.

Incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities.

In the previously valid version of the analyzed norm of the Law on Competition, there was a clause about an economic entity making an incorrect comparison in the process of its advertising activities. The above-mentioned Federal Law of May 25, 1995 "On Amendments and Additions to the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Product Markets" this norm in anticipation of the adoption of the Law "On Advertising", which was intended to regulate specific issues of unfair advertising activities , was given more general character. However, the newly adopted Law on Advertising significantly expanded the list of types of unfair competition in the field of advertising, and comparative advertising (paragraph 3 of Article 6) became only one of the types of inappropriate advertising.

Often an incorrect comparison is used to take credit for a successful competitor. In this case, unfair competition occurs already with the very statement: “My product is as good as.” If it turns out that, for example, game console- analogue of a well-known product - different worst quality, we can also talk about unfair competition in the form of misleading the consumer.

Another interesting and controversial case of incorrect comparison is if a company whose products are distinguished by increased quality and safety points out the worse quality and safety characteristics of competitors’ products. This can be detrimental to competitors, although displacing an inferior product is beneficial to the consumer. However, achieving a dominant position in the industry by a leading firm in this way can lead to ambiguous consequences. In the conditions of the Russian underdeveloped market, the dominance of a large foreign company with advanced technology can lead to the decline of the domestic industry. A dominant position also sometimes leads to stagnation and a decrease in interest in consumer requirements, a deterioration in pricing policy, and a slowdown in innovation. Small manufacturers who could introduce new products to the market, more profitable in terms of their consumer properties, have high entry barriers to it.

On the other hand, it is harmful for society to preserve and maintain the release of unsafe products if the consumer is not sufficiently aware of its negative properties and, as a result, chooses a product primarily not by quality, but by price characteristics. Thus, the line between the interests of competitors and consumers can be very fragile and ambiguous.

Sale of goods with illegal use of the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, performance of work, services.

Currently, it is this form of unfair competition that is most widespread, and protection from such actions precisely through the rules of legislation on suppressing unfair competition causes a very negative reaction from specialists in the field of intellectual property.

Since the goals of producers and consumers do not coincide in everything, the sale of a product that is unprofitable for a bona fide business entity is sometimes desirable and even profitable for the consumer (if it is, for example, a high-quality and cheaper pirated copy of a computer program, a film on video cassette, clothing with trademarks of large Western manufacturing companies (if they do not have the corresponding rights based on a franchise) in Eastern European countries).

It should be noted that protection from various unfair methods of competition, for example, through the illegal use of means of individualization of a business entity (company name, commercial designation) or its product (trademark, trademark, logo, etc.) in a number of cases could be carried out is much more effective when using rules on unfair competition than using traditional rules of intellectual property law.

Business entities that consider their rights to a company name to be violated, including as a result of unfair competition, do not always find effective ways suppression of such actions. For example, if two companies with a name that is similar in form and meaning (although not identical) operate on the market, going to court for a ban on the use of the company name may not lead to the desired result. In judicial practice, there are many examples of disputes about similar names of competitors in the same market sector, about disputes in connection with the registration and use of the same company name and trademark, etc. It should be noted that, at the same time, cases are not always resolved in favor of a bona fide business entity - in the case, for example, if organizations using the same company name and operating in the same field of business (for example, in the construction services market) have different organizational and legal forms .

However, in this case, appealing to the antimonopoly authorities, provided that it is possible to prove the fact of unfair competition, may be more effective.

Receipt, use, disclosure of scientific, technical, production or trade information, including trade secrets, without the consent of its owner.

For a long time, production secrets that make it possible to create a higher quality product and attract more consumers have been kept by professionals in their craft - doctors, winemakers, blacksmiths, barbers, masons, etc.

However, a professional’s defense of his secrets invariably runs into attempts to overcome this defense and gain unreasonable competitive advantages at the expense of others’ experience, work, and brains.

To protect such secrets, two main methods have long been developed, the first of which is to elevate the secrets of production of certain types of goods to the rank of state secrets. The second way is to grant, for certain periods of time, privileges to persons who possess production and technological secrets and disclose them to create new mechanisms, devices, and industries. At the same time, as a result of the “dissemination of information about the invention to the general public,” there was no need for measures to protect confidentiality, and the former owner of the secret received very significant benefits for its disclosure for a certain period of time<*>.

<*>Dozortsev V.A. Exclusive rights and their development. Introductory article to the collection "Rights to the results of intellectual activity." M.: DE-JURE, 1995. P. 46.

However, these measures did not solve the problem of protecting certain types of information of an individual owner - for example, a list regular customers or special techniques for promoting goods (the transfer of an employee trained in such techniques to a competitor could significantly weaken the position of the rightful owner of the information).

With the growing number of competitors in expanding product markets, with an increase in development volumes and the release of more and more new products into circulation in different countries, the importance of legislative and judicial protection of production and circulation secrets and the need to protect entrepreneurs in this area began to be realized. For these purposes, from the end of the 19th and especially in the 20th century, legal norms began to be developed aimed at preventing the misuse of confidential information of a commercial nature - trade secrets, commercial and trade secrets, etc.

However, in socialist Russia of the 20th century, the prevailing opinion was that secrets between enterprises were completely unnecessary (of course, unless these secrets were elevated to the rank of state secrets). As Professor Dozortsev writes, “every person who had an achievement had to transfer it free of charge to the public, and his obligation to transfer free of charge all data on the achievement at the request of an interested person was generally unconditional... The category “trade secret” was not recognized by law. Accordingly, , there could be no question of its market circulation"<*>.

<*>Right there. pp. 45 - 46.

During this period, the exchange of best practices between enterprises was widespread in the country; technical improvements ( rationalization proposals) according to directives higher authorities were implemented at all similar enterprises in the industry. Thus, in the 70s, new developments in the recipe and design of Red October confectionery products were extended by order of the Ministry of Food Industry to all confectionery factories operating at that time.

With the beginning of the restructuring of the strictly regulated enterprise management system and the adoption in 1987 of the USSR Law "On state enterprise(association)", the obligation of the enterprise to ensure the safety of technological, patent and licensed (but not commercial - M.Z.) information was also provided for (clause 7 of article 11 of the Law). And only with the adoption of the Fundamentals of Civil Legislation of the USSR (Article 151), and later part of the first Civil Code of the Russian Federation (Article 139), the concept of confidential commercial information (commercial information constituting a trade secret, trade secret) returned to the economy.

Unscrupulous competitors often try to obtain hidden information using various types industrial espionage. In modern Russian legislation, unlike the legislation of most industrialized countries, there is no definition of industrial espionage<*>, there is no provision for responsibility for its implementation.

<*>Bashkin V. The secret of the company. Service. 1995. N 20; Soloviev E. Commercial secret and its protection. M.: Glavbukh, 1995. P. 6.

However, the consequences of industrial espionage in the form of disruption of transactions, plans to create regional branches, etc. are felt by many Russian business entities. The sale of large blocks of shares to one or a few investors in the event of a competitor receiving secret information sometimes leads to the collapse of even the most successful commercial projects and loss of enterprise independence.

One of the first very widespread protective measures was the creation of a security service - both special units directly within companies, and specialized consulting and security firms with a variety of methods of protection against industrial espionage using various technical means.

At the same time, the problem of information security often turns out to be a problem of corporation personnel - “insiders” (accomplices of a competitor from among the corporation’s employees), negligence of personnel in ensuring the security of information, etc. Employees - users of computer networks - often neglect elementary rules information protection. This is manifested, for example, in the primitiveness of passwords (while unscrupulous competitors actively use experts in the psychology of those who have to come up with passwords), and the possibility of unauthorized access to them. Sometimes the user sticks a complex password in a visible place on the monitor or writes it to a text file on the hard drive (when this password becomes available for penetration through the network).

In modern Russian conditions, unfortunately, unfair receipt by competitors of confidential information, primarily of a commercial nature, is sometimes carried out with the help of employees of various government agencies and a number of organizations (banks, insurers) that, due to their specific nature, have access to confidential information.

Awareness of the importance of this problem gradually came to government agencies, and it is no coincidence that it has found some reflection in the Concepts of National and Information Security of Russia.

It should be noted that this article only refers to the forms of unfair competition contained in the Competition Law. The legislator left this list open, based on the concept of unfair competition discussed above.

In particular, unfair competition may be various obstacles that a competitor creates for its rival (disorganization of production, luring away workers, computer viruses in programs, etc.). Identification and promulgation of forms of unfair competition by the federal antimonopoly body in special publications, as well as by the courts when generalizing the relevant category of cases, would significantly contribute to the development of various measures and methods of countering unfair competition, both legal and otherwise.

In this regard, we can conclude that the problems of unfair competition are, for the most part, very, very ambiguous - different phenomena and examples often change their polarity from positive to negative and back. In fact, it is always possible that a decision that seems very fair and brings great benefit turns out to be unfair and causes great harm. It is in this regard that it seems necessary to pay special attention to the ethical side of doing business and to the ethical component of government regulation and management.

It should be noted that, in essence, the enshrinement of forms of unfair competition in the Competition Law is a double-edged sword and can be used both to protect a bona fide competitor and to attack an unfair one. In this case, various competitive methods prohibited by the legislator as one or another form of unfair competition may be used simultaneously or alternately.

Among the methods of protection against unfair competition, administrative, civil and criminal law can be distinguished.

The Competition Law stipulates that for guilty illegal actions that violate antimonopoly legislation, commercial and non-profit organizations or their leaders, as well as citizens, including individual entrepreneurs, bear civil, administrative or criminal liability (Article 22.1).

When choosing a method of protection against unfair competitive actions, it is advisable for a business entity to carefully analyze (independently or with the involvement of specialists) the purpose and manner of these or those actions, whether it is possible to apply measures of administrative suppression or whether to go to court, etc.

Speaking about administrative methods of protection, it should be noted that the prevention, limitation and suppression of monopolistic activities and unfair competition are among the main tasks of the federal antimonopoly body, which is the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support (MAP of Russia) (Article 11 of the Competition Law , subclause 1 of clause 5 of the Regulations on MAP of Russia).

The protection of the rights of business entities from unfair competition in MAP of Russia is carried out in accordance with the Rules for the consideration of cases of violations of antimonopoly legislation, approved by Order of MAP of Russia dated July 25, 1996 N 91<*>.

<*>Bulletin of normative acts federal bodies executive power. 1996. N 4.

An economic entity, having submitted an application to suppress the unfair actions of its competitor, has the right to expect, if the appropriate decision of the antimonopoly authority is made, the issuance of an order to stop such actions.

In accordance with Art. 12 of the Competition Law, the federal antimonopoly authority has the right to:

give business entities mandatory instructions to cease violations of antimonopoly legislation and (or) eliminate their consequences, restore the original situation, transfer to the budget profits received as a result of violation of antimonopoly legislation;

make decisions on imposing fines on commercial and non-profit organizations and administrative penalties on their managers, citizens, including individual entrepreneurs for violations of antimonopoly legislation;

apply to a court or arbitration court with statements about violations of antimonopoly legislation, as well as participate in the consideration of cases related to the application and violation of antimonopoly legislation by a court or arbitration court;

send materials to the relevant law enforcement agencies to resolve the issue of initiating a criminal case based on crimes related to violation of antimonopoly legislation.

Article 22 of the Competition Law establishes the mandatory execution of orders from the federal antimonopoly authority.

In accordance with the instructions of the federal antimonopoly body, an unscrupulous competitor may be obliged to: stop the violation, restore the original position, transfer to the federal budget the profit received as a result of the violation, and perform other actions provided for by the order.

Moreover, in case of violation of antimonopoly legislation, the federal antimonopoly body (territorial body) has the right to administratively impose fines and issue warnings in accordance with current legislation.

Currently, the Ministry of Antimonopoly Policy and Entrepreneurship Support has prepared additions and amendments to the Competition Law, including with regard to liability for its violation.

Experts from antimonopoly authorities have repeatedly criticized the principle that the liability of business entities and the amount of penalties in Russia do not depend on the entire period of illegal actions, but are calculated from the moment they are identified by the antimonopoly authorities and the issuance of orders, which can lead to abuses both on the part of the antimonopoly authorities and and from business entities. It has also been proposed more than once to establish liability not for failure to comply with decisions and orders of antimonopoly authorities, but for illegal actions of business entities.

According to the MAP of Russia, “the introduction of direct liability for monopolistic practices and unfair competition by establishing high sanctions for these violations” will help improve the current situation.

It should be noted, however, that the application by antimonopoly authorities of the current legislation affecting intellectual property relations has a number of features and pitfalls that are not always easily eliminated without appropriate training in this area of ​​law.

In this regard, obviously, it would be much more productive not to have the existing ambiguous relationship between Rospatent and MAP of Russia towards each other’s actions, but rather their mutual cooperation. Taking into account the effectively developing network of territorial bodies of the MAP of Russia and the knowledge of employees of Rospatent, RAO and others in the field of intellectual property legislation, this cooperation would significantly eliminate the negative consequences of violations in the field of intellectual property rights and provide more effective protection against unfair competition.

Measures of civil liability, in addition to the above-mentioned compensation for moral damage, may also consist of recovery of losses caused by unfair competition, in accordance with Art. Art. 15, 393 Civil Code of the Russian Federation. At the same time, as noted above, at present it is quite difficult to determine the amount of a competitor’s losses, and this method of protection will obviously become more widespread in the future.

The measures of criminal liability in the Competition Law and the Criminal Code of the Russian Federation are formulated ambiguously. In accordance with paragraph 4 of Art. 24 of the Competition Law, managers of commercial and non-profit organizations, as well as officials of executive authorities at various levels and bodies local government Those guilty of repeated failure within a year to comply with the instructions of the federal antimonopoly body (territorial body) or of preventing employees of these bodies from fulfilling their duties are subject to criminal liability in accordance with current legislation.

Article 175.1 “Violation of antimonopoly legislation” was introduced into the previously effective Criminal Code of the RSFSR by Law of the Russian Federation of March 13, 1992 N 2509-1 (as amended by Law of the Russian Federation of October 20, 1992 N 3692-1)<*>. This article established liability for “failure by an official of a government body, management or economic entity to fulfill on time the legal orders of the Antimonopoly Committee of the Russian Federation, its territorial administration, if it was committed by a person who was subject to administrative penalties for the same actions during the year.”

<*>Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1992. N 16. Art. 838; N 47. Art. 2664.

It should be noted that the legislator does not highlight special measures of liability for unfair competition in Section VI of the Competition Law “Liability for violation of antimonopoly legislation”. Therefore, until January 1997, business entities that repeatedly suffered from unfair competitors during the year (whose managers were subject to administrative penalties for failure to comply, for example, with an order from the antimonopoly authority to stop unfair competitive actions) theoretically had the opportunity to seek criminal legal protection.

The purpose of unfair competition may be to restrict competition, accomplished by eliminating other economic entities from the market (Part 1 of Article 178 of the Criminal Code of the Russian Federation), and sometimes involving the use of violence or the threat of its use (Part 3 of Article 178 of the Criminal Code of the Russian Federation).

However, as noted above, unfair competitive actions, with the goal of acquiring unjustified competitive advantages by an economic entity, may simultaneously constitute an offense in accordance with the norms of any other branches of law. Therefore, the fact of unfair competition may sometimes not receive such an assessment if the specified goal is not identified by law enforcement agencies, although this does not make it more acceptable from the point of view of fair competition. In this regard, one should keep in mind a number of crimes that may be committed precisely in order to gain an advantage in competition. Taking this circumstance into account can greatly facilitate the solution to the question “who benefits from this?” when investigating a crime when the offender is not obvious (for example, the person who collected information constituting a banking or commercial secret is unknown, or it is unknown who organized the information leak).

Unfair competition may also be the “illegal use of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods” (Part 1 of Article 180 of the Criminal Code of the Russian Federation), as well as the illegal use of warning markings in relation to something not registered in Russian Federation trademark or appellation of origin of goods.

Unfair competition may, in particular, be accompanied by slander - the dissemination of deliberately false information discrediting the honor and dignity of another person or undermining his reputation (Article 129 of the Criminal Code of the Russian Federation); insult - humiliation of the honor and dignity of another person, expressed in an indecent form (Article 130 of the Criminal Code of the Russian Federation).

One of the forms of unfair competition carried out in advertising activities may be deliberately false advertising, i.e. use in advertising of knowingly false information regarding goods, works or services, as well as their manufacturers (performers, sellers), committed out of selfish interest and causing significant damage (Article 182 of the Criminal Code of the Russian Federation). On the other hand, deliberately false advertising can also occur in the absence of competitors - which occurred, in particular, in 1992 - 1993, during the initial period of the formation of financial pyramids.

Also, an infringer of inventive and patent rights may gain unjustified competitive advantages through the illegal use of an invention, utility model or industrial design, disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design before the official publication of information about them, appropriation of authorship or coercion of co-authorship ( Article 147 of the Criminal Code of the Russian Federation).

Unfair competition can also be carried out in the case of illegal receipt and disclosure of information constituting a commercial or banking secret, through theft of documents, bribery or threats, as well as in any other illegal way for the purpose of disclosure or illegal use of this information, as well as illegal disclosure or use of information constituting a commercial or bank secrecy, without the consent of their owner, committed out of selfish or other personal interest (Article 183 of the Criminal Code of the Russian Federation).

Self-defense of their rights by business entities is also important, which can be very effective if there are sufficiently professionally trained legal consultants.

First of all, these are preventive measures. Depending on the type of activity of the business entity, they may vary. Some publishing and bookselling companies, for example, compile “black lists” of unscrupulous contractors. The banking community acts similarly.

Lists of bona fide economic entities are maintained by chambers of commerce and industry.

In accordance with paragraph 2 of Art. 3 of the Law of the Russian Federation of July 7, 1993 N 5340-1 (as amended by the Federal Law of May 19, 1995 N 82-FZ) "On Chambers of Commerce and Industry in the Russian Federation"<*>The tasks of chambers of commerce and industry include, in particular, taking measures within the framework of the rights granted to them to prevent and suppress unfair competition and non-business partnerships.

<*>Gazette of the Congress of People's Deputies and the Supreme Council of the Russian Federation. 1993. N 33. Art. 1309.

When implementing economic activity with the use of intellectual property, a thorough preliminary check of the concluded licensing contracts is necessary in all cases of transfer of rights to use such objects. Moreover, in this case, both a general analysis of the contract and, in some cases, consultation are required patent attorney, a specialist in the field of copyright, etc., who will be able to expertly assess how much the scope of the transferred rights corresponds to what was declared by your counterparty.

Sometimes it is advisable to use the services of detectives.

It should be borne in mind that according to the Law of the Russian Federation of March 11, 1992 N 2487-1 “On private detective and security activities in the Russian Federation”, one of the types of services provided for detective purposes is considered to be “establishing the circumstances of the unlawful use of brand names in business activities and names, unfair competition, as well as disclosure of information constituting a trade secret" (clause 3 of article 3). At the same time, paragraph 2 of the same article provides the right to use the services of persons legally engaged in private detective and security activities for the purpose of “collecting information for business negotiations.” Some vagueness of the wording makes it possible to provide advantages in such negotiations by obtaining confidential information about partners protected by them, to which there is no access on a legal basis, having actual or potential commercial value due to unknown to third parties, as provided for in the definition of a trade secret in Art. 139 of the Civil Code of the Russian Federation.

The versatility of private detective and security activities, however, makes it possible to use the services of “consulting and preparing recommendations to clients on issues of lawful protection from unlawful attacks” for a variety of different, and not always conscientious, purposes.

It can be concluded that the prevention of unfair competition can be achieved through a number of organizational and legal measures that create certain conditions for doing business in the Russian Federation. It seems that the further development of a market economy will contribute to the combination of these, still quite disparate, measures into a single set of means of organizational and legal influence on business entities in order for them to carry out fair business activities and prevent unfair competition.

Taking into account the above, a number of conclusions can be drawn.

Firstly, the concept of unfair competition as currently formulated in legislation appears to contain a large number of qualifying features that make it heavier and complicate its application in practice. It would be enough to formulate this concept as “the behavior of a competing economic entity (action or inaction) that contradicts the requirements of integrity, reasonableness and fairness when carrying out business activities and leading to the receipt of unjustified competitive advantages.”

Secondly, it is desirable to carefully study the conditions under which liability for committing unfair competitive actions arises, and to develop a comprehensive system of measures of liability for these violations in an independent Law on Unfair Competition.

Combining the efforts of lawyers, economists, philosophers, and social psychologists in preparing the Law on Unfair Competition, the very fact of the adoption of such a Law could have a significant impact on the formation of a negative public attitude towards unfair business activities.

Thirdly, there is a need for constant interaction between government bodies dealing with issues of unfair competition, protection of intellectual property, customs and other authorities among themselves and with those public structures who are making efforts to create and introduce into business practice ethical principles Russian business.

Fourthly, there is a need for an open discussion of the problems of integrity in business and a generalization of the practice of suppressing unfair competition - both by the federal antimonopoly body and by the judicial authorities, chambers of commerce and industry, etc.

It seems that the combination of state control and control of business entities themselves over the fair implementation of competition in general when carrying out business activities could also be very effective.

home » Loans » The concept and forms of unfair competition in product markets. The concept and forms of unfair competition Unfair competition in the product market