ЎЗБЕКИСТОН ҚОНУНЧИЛИГИ ТАҲЛИЛИ ♦ UZBEK LAW REVIEW ♦ ОБЗОР ЗАКОНОДАТЕЛЬСТВА УЗБЕКИСТАНА
2019
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M. Tadjibayeva
Teacher of Business Law Department at TSUL
DISCRETION AS ONE OF THE SIGNS OF UNFAIR
COMPETITION
Annotation:
The article presents a detailed description
and considers the signs of discrediting a competitor, which
is one of the types of acts of unfair competition prohibited
by the Law of the Republic of Uzbekistan "On
competition". Based on the legal analysis of legal norms of
the legislation of the Republic of Uzbekistan, foreign
countries and specialized scientific literature, the article
reveals the specifics of dissemination of false, inaccurate
or distorted information that may cause losses to the
economic entity or damage its business reputation.
Key words:
unfair competition, discrediting, spreading
false, inaccurate or distorted information, business
reputation of a business entity.
Аннотация:
ушбу
мақолада
Ўзбекистон
Республикасининг "Рақобат тўғрисида"ги қонуни билан
тақиқланган
ва
назарияда
инсофсиз
рақобат
турларидан бири ҳисобланган дискредитация холати
кўриб чиқилиб батавсил тавсиф берилган. Мақола
Ўзбекистон
Республикаси
қонунчилиги,
хорижий
давлатлар
ва
илмий
адабиётларнинг
ҳуқуқий
нормаларини таҳлил қилиш асосида, рақобатчига
нисбатан ёлғон, ноаниқ ва бузилган маълумотлар
тарқалитиши орқали ишбилармонлик обрўсига путур
етказган холда зарар етказишнинг ўзига хос
хусусиятларини очиб беради.
Калит сўзлар
: инсофсиз рақобат, дискредитация,
ёлғон, ноаниқ ёки бузилган маълумотлар, хўжалик
юритувчи субъектларнинг ишбилармонлик обрўси
Аннотация
:
в статье представлена развернутая
характеристика и рассмотрены признаки дискредита-
ции конкурента, являющейся одним из типов актов
недобросовестной конкуренции, запрещенной Законом
Республики Узбекистан «О конкуренции» На основе
юридического анализа правовых норм законодатель-
ства Республики Узбекистан, зарубежных стран и спе-
циализированной научной литературы статья раскры-
вает специфику распространения ложных, неточных
или искаженных сведений, которые могут причинить
убытки хозяйствующему субъекту либо нанести ущерб
его деловой репутации.
Ключевые слова:
недобросовестная конкуренция,
дискредитация, распространение ложных, неточных
или искаженных сведений, деловая репутация хозяй-
ствующего субъекта.
The concept of unfair competition under the Law of the
Republic of Uzbekistan “On competition” means following:
actions of an economic entity or a group of persons aimed
at acquiring advantages in carrying out economic activities
that are contrary to legislation, business customs and
cause or may cause losses to other economic entities
(competitors) or cause or may damage their business
reputation [1].
In this regard, it can be said that the current legislation
envisages the following four criteria for unfair competition:
special privileges in doing business, committing acts
contrary to the law and business ethics, harming and dis-
creating other business competitors.
The w
ord “discredit” in French means “loss of trust,”
and it is a deliberate act aimed at undermining the
reputation, authority and trust of a business entity [2].
In Article 14 Law of the Republic of Uzbekistan “On
Competition” cites unfair competition as incorrect
comparisons that could cause losses to another business
entity or damage its business reputation.
In this case, an incorrect comparison is the comparison
of the goods of an economic entity with other goods of
another economic entity (competitor) by using words or
designations that give the impression of superiority of the
goods without specifying characteristics or comparison
parameters that have objective confirmation, or when
statements containing these words or designations are
false, inaccurate or distorted
From the above provision, it is understood that an
unfair competitor should be regarded as unfair competition
when his or her comparative information is inaccurate,
thereby damaging another competitor and undermining his
business reputation. Also, in the second part of the norm,
the words or symbols indicated in the information must be
false, inaccurate and distorted to be considered a
misleading comparison.
Hence, the discrediting a competitor`s business
reputation through false, ambiguous and distorted
confirmation
– the case of discredit is considered unfair
competition.
In current practice, discretion is often seen in competi-
tors` relationships as a sign of unfair competition. Howev-
er, the current legislation of the Republic of Uzbekistan
provides a very general definition of the concept of unfair
competition, and now requires a clear and understandable
explanation of the methods specified in this definition.
That is, there is no indication of the mechanism and
character of discretion which can undermine competitors`
business reputation. In this regard, we try to study this
sign of unfair competition in the light of international norms
and legislation of foreign countries.
In competition law theory, the term "competitor
discretion" is used extensively. Concurent discreditation -
distribution of knowingly false, inaccurate or distorted
information in a printed or otherwise duplicated text or in
the mass media in order to damage the business
reputation of a business entity. [3]
Discrediting (or disparagement) is usually defined as
any false allegation concerning a competitor that is likely
to harm his commercial goodwill. Like misleading,
discrediting tries to entice customers with incorrect
information. Unlike misleading, however, this is not done
by false or deceptive statements about one’s own product,
but rather by casting untruthful aspersions on a
competitor, his products or his services. Discrediting,
therefore, always involves a direct attack on a particular
businessman or a particular category of businessmen, but
its consequences go beyond that aim: since the
information on the competitor or his products is incorrect,
the consumer is liable to suffer also. [4, 148 page]
Issues of discredit were also regulated in the Paris
Convention "On the protection of industrial property",
adopted in 1883 year. This convention is considered one
of the international agreements in the regulation of
economic spheres, and it covers issues of patents,
trademarks, industrial designs, utility models, service
marks, trade names, geographical indications and the
repression of unfair competition.
According to Paris Convention An act of unfair
competition is any act of competition that is contrary to
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honest customs in industrial and commercial affairs. In
particular, the following shall be prohibited: all actions that
may in any way cause confusion with respect to the
enterprise, products or industrial or commercial activities
of a competitor; false statements in the course of business
that could discredit a competitor, product or industrial or
commercial activity; indications or statements, the use of
which in carrying out commercial activities may mislead
the public regarding the nature, method of manufacture,
properties, suitability for use or quantity of goods. [5]
The Convention prohibits disqualification as a sign of
unfair competition, that is, providing false information that
could discredit a product, industry or commercial activity.
The Federal Law of the Russian Federation "On
Competition Protection" dated January 5, 2016 has a
broader definition of the concept of unfair competition.
This norm specifies that unfair competition should be
avoided through discretion, such as dissemination of in-
correct, inaccurate or distorted information that could harm
the business entity and (or) damage its business
reputation through discretion. [6] It also points out that in
the following relationships, unfair competition through
discretion should be avoided:
1) quality and consumer properties of goods offered for
sale by other competing business entities, purpose of such
goods, methods and conditions of their production or use,
results expected from the use of such goods, their
suitability for certain purposes;
2) quantity of goods offered for sale by other business
entities-competitors, availability of such goods at the
market, possibility of their purchase under certain
conditions, actual demand for such goods;
3) conditions under which goods are offered for sale by
other business entities-competitors, in particular, the price
of goods. [6]
The Law of the Republic of Germany “On Fighting
Unfair Competition” of March 3, 2010 (Gesetz gegen den
unlauteren Wettbewerb, UWG) is aimed at enhancing
consumer protection, limiting unfair competition, and
providing greater transparency of the rules for people who
do not have a legal education, business. It was adopted to
give freedom to Section 7 of the Law states that
disqualification and insult of a person with his or her
competitor's distinctive features, goods, services, activities
or personal or business circumstances are considered
unfair competition., adopted to give freedom for business.
In Chapter 7 of Section 3 of the Law, discredits or den-
igrates the distinguishing marks, goods, services, activi-
ties, or personal or business circumstances of a competi-
tor are considered unfair competition. [7]
The United States Act of July 5, 1946, the Lanham Act,
is a Federal Law regulating competition relations, which
includes trademark infringement, trademark dilution, and
false advertising. The chapter 43 of law is named False
designations of origin, false descriptions, and dilution
forbidden According to the chapter:
1. Any person who, on or in connection with any goods
or services, or any container for goods, uses in commerce
any word, term, name, symbol, or device, or any combina-
tion thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading rep-
resentation of fact, which
—
(A) is likely to cause confusion, or to cause mistake, or
to deceive as to the affiliation, connection, or association
of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or
commercial activities by another person, or
(B) in commercial advertising or promotion, misrepre-
sents the nature, characteristics, qualities, or geographic
origin of his or her or another person's goods, services, or
commercial activities, shall be liable in a civil action by any
person who believes that he or she is or is likely to be
damaged by such act. [7]
In order to establish a state of discredit as a dishonest
competition, the following conditions must exist:
- The action should have the appearance of distributing
information;
- Information should be vague, false;
- Information should be broken
- Damage to the commercial activities of the competitor
by causing unpleasant consequences.
When we say
“dissemination of information”, any
behavior that causes it to become known to third parties is
understood. In this case, the form of information
dissemination does not matter. Information can be in the
form of public speech, in the form of public speech in the
media, in the form of interviews or in the form of letters in
business work. Norms against the dissemination of
inaccurate information are widely expressed in our
national legislation. According to Article 100 of the Civil
Code of the Republic of Uzbekistan, a citizen has the right
to demand a refutation by court if the person who has
disseminated such information cannot prove that they are
right to the truth on the basis of information that violates
his honor, dignity or business reputation.
It is understood that such information will be disclosed
to the general public, more than one or at least to a single
person,
as
disseminating
information
that
would
undermine the case. Reporting can be carried out in public
or private, in a written or oral form, with the use of mass
media, as well as in a pictorial way (photo, photomon-
tage)[8].
Also, Article 6 of the law
“On mass media”of the
Republic of Uzbekistan prohibits the insult of honor and
dignity of citizens or the business reputation, interference
in their personal lives through mass media.
According to Paragraph 8 of Article 5 of the Supreme
Court Plenum of the Republic of Uzbekistan dated
1
9.12.1992 “On the application of laws on the protection of
honor, dignity and business reputation of citizens and
organizations in judicial practice
” Dissemination of
information that denigrates the honour, dignity and
business reputation of a legal entity or individual should be
understood as publication in the mass media, presentation
in official records, public speeches, statements addressed
to officials or other communication, including orally to
several persons or at least one person.
However, in the law of the Republic of Uzbekistan "on
competition"it is not clear whether the dissemination of
false information, that is, how the information will be
disseminated. In other norms that regulate this situation,
this issue is approached in a narrow circle.
Information
distributed
as
a
mechanism
of
dissemination of data can be provided through a printed
method, audio or video recordings, radio or television
programmes, cinemachronics, speech and application and
telecommunication sets of information [9-31 page].
It is also necessary that in order to find out the
information as a discredit, its character should have an
evaluation character, which is called false, ambiguous and
distorted. As false information is understood intentionally
distorted information that does not correspond to the truth
in whole or in part. As for ambiguous information, it is
understood that information that partially does not
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correspond to reality, but corresponds to the thoughts of
the person who distributed it. As distorted information, it is
understood that information that is actually completely
wrong, but that corresponds to the concepts of the person
who distributes them [9-33 page].
From this it is possible to conclude that the basis for
the occurrence of the discredit there must be the breach
of the information and the intent to cause harm.
Dissemination of information by a competitor that
reduces the level of trust in an business entity, but is
reliable, is not unfair competition [10].
In the case of discretion, the subject matter is
controversial, and some people argue that the subject only
refers to competitors, while others argue that any
individual may create discretion.
According to the national legislation, article 13 of the
Law of the Republic of Uzbekistan “On Competition” an
incorrect comparison is the comparison of the goods of an
economic entity with other goods of another economic
entity (competitor) by using words or designations that
give the impression of superiority of the goods without
specifying characteristics or comparison parameters that
have objective confirmation, or when statements
containing these words or designations are false,
inaccurate or distorted.
Thus, the law provides that both parties should be
business
entities
-
competing
in the event
of
disqualification through false, inaccurate or distorted
information as a sign of unfair competition.
Also, according to some Western experts, even a
person who "attacks" through discredit is considered to be
an opponent. Most states protect the law on unfair
competition from disproportionality in cases where there is
at least some kind of competitive relationship between the
plaintiff and the respondent.
In some countries, however, the requirement of a
competitive relationship has been totally abandoned, and
this has led to a considerably broader concept of
discrediting: not only competitors but also consumer
associations or the media can be held liable under unfair
competition law if they make derogatory statements about
an individual businessman.[4-148]
Thus, it is clear that not only the competitor, but also
other individuals, can create a discretionary situation and
thereby allow unfair competition. In this regard, the other
party is the supporter of one party competing in the
conduct of actions that may damage the business
reputation.
Хорижий мамлакатлар қонунчилиги ва чет эл
рақобат ҳуқуқи назарияси ва амалиёти инсофсиз
рақобат сифатида дискредитация холати субъектлари
доирасини кенгайтиришлари миллий қонунчиликка ҳам
шундай таклиф берилишни тақозо этади.
Foreign legislation and the theory and practice of
foreign competition law extend the scope of discretion
entities as unfair competition to the national legislation.
The following may be mentioned as object of
discretion:
-
The object of discredit is the goods themselves
(their quality, consumer properties, purpose, methods and
conditions of manufacture or application, results, expected
from use, suitability for certain purposes);
-
state of the goods market on which the goods
are sold (quantity of goods offered to sale, availability of
goods at the market, possibility to purchase them under
certain conditions, the actual size of demand for such
goods); sales conditions
-
goods (price and other) [10].
Indeed, if discreation is carried out with respect to the
competitor's goods, namely the market of the commodity
market in which the product is sold and the terms of the
sale, this may be regarded as unfair competition.
According to the article 192 of the Criminal Code of the
Republic of Uzbekistan, Discrediting a competitor, that is,
disseminating knowingly false, inaccurate or distorted
information in a printed or otherwise multiplied text or in
the media with the aim of harming the business reputation
of an economic entity, is punishable by a fine from fifty to
one hundred basic calculation values or by obligatory
community service up to three hundred and sixty hours or
correctional labor up to three years.
From the foregoing, it can be said that in the case of
discretion as a sign of unfair competition, there must be a
purpose to undermine the reputation of the entrepreneur,
his product or service. Also, the discretionary information
must not represent the true nature of the competitor's
activities, and must have the characteristics of distortion.
Thus, the discretionary status must seriously harm the
activities of the business entity, which is discredited by the
competitors and those who support them.
Bibliography:
1.
Law of the Republic of Uzbekistan “On competition”
dated November 14, 2011, No. LRU-319, Collection of
Legislation of the Republic of Uzbekistan, 2011.
2.
Райзберг Б.А. Современный экономический
словарь – М.: ИНФРА – М, 2017. Ст. 108.
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Сухарев А. Я., Крутский В.Е. Большой
юридический словарь. М.: ИНФРА – М, 2003. Ст.108.
4. WIPO Intellectual Property Handbook: Policy, Law
and Use WIPO publication WIPO, 2004.
5. Paris Convention for the Protection of Industrial
Property (as amended on September 28, 1979) (Official
translation) https://wipolex.wipo.int/ru/text/379398
6.
Федеральный закон от 26.07.2006 N 135-ФЗ
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http://www.consultant.ru/cons/cgi/online.cgi?req=doc&bas
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87748132#014001142718921034
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https://germanlawarchive.iuscomp.org/?p=822
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Татьяна
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