With the rapid development of economy and the click-and-mortar business, the competitive relationship among the market forces has undertaken great changes. New types of legal disputes have emerged, which caused much difficulties in fact finding and law applying. New requirement is raised for judicial fields in identifying the right border as well as the responsibilities. Under this situation, the Supreme People’s Court of China issued in March of 2022 the new Judicial Interpretation concerning the Application of the Anti-Unfair Competition Law, focusing on the behaviors of the market entities, counterfeit and confusion, false publicity, the internet-related competitions and other issues.
Since the implementation of Anti-Unfair Competition Law, Article 2 has been used as one of the legal bases in identifying unfair competition acts. In spite of its important role in maintaining the market order, there has been phenomenon of applying non-unified standards. Under the judicial interpretation, it is regulated how the courts should apply Article 2 against unfair competition acts. According to the judicial interpretation, a business operator, without advance explicit hint or approval of the users, should not mislead, deceive, force the users to modify, shutdown, download the products or services legally provided by internet operators. No new acts are listed in the judicial interpretation. This means that only rules and guidance are provided in the judicial practice and there is space for self-adjustment of the market and technical innovation.
According to the judicial interpretation, a code of conduct generally followed and recognized in a specific commercial field can be defined as "business ethics" specified in Article 2 of the Anti-Unfair Competition Law. The people's court shall determine whether business ethics are violated in light of the specific circumstances of a case, taking into account factors such as industry rules or business practice, the subjective will of a business operator, the will to choose transaction counterparties, and the impact on the rights and interests of consumers, the order of market competition, and the public interest.
11 articles are used in the judicial interpretation to define counterfeit and confusion. The concept of labels with “certain influence” is introduced.
