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May 2018
May 2018The Current State of Operation of and Revisions to the Unfair Competition Prevention Act (to go into effect as of July 18, 2018)
1. The Key Points of the Unfair Competition Prevention Act
Article 2 Section 1 of The Unfair Competition Prevention Act defines an act of unfair competition as follows:
A.
An act of causing confusion with goods of another person by using an identical or similar personal name, business name, trademark, container or packaging of commercial goods of another person, or mark otherwise indicating goods of another person which is domestically widely recognized, or by selling, distributing, importing, or exporting goods using the same.
B.
An act of causing confusion with a business facility or activity of another person by using an identical or similar personal name, business name, sign of another person or mark otherwise indicating a business of another person (inclusive of overall outer appearance of the location of provision of business, such as sales of goods, methods of providing services, or signboards, outer appearances, interior decorations) which is widely recognized domestically.
C.
An act, other than those described under paragraphs A or B above, without a legitimate purpose as designated by a presidential decree, such as a non-commercial use, etc., of causing damages to the distinctiveness or reputation of a mark of another person by using an identical or similar personal name, business name, trademark, container or packaging of commercial goods of another person, a mark otherwise indicating goods or a business of another person (inclusive of overall outer appearance of the location of provision of business, such as sales of goods, methods of providing services, or signboards, outer appearances, interior decorations) which is domestically widely recognized, or by selling, distributing, importing, or exporting goods using the same.
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J.
An act of unfairly using or causing a third party to use, by providing to the third party, information containing a technological or business idea of another person having economic value from negotiation of a deal or during a deal-making process, such as business proposition, bidding, public contest, etc., in violation of the purpose of provision of such information for business profit of one’s self or a third party. However, the above does not apply to a case in which the person who was provided with such information already knew of the idea at the time the information was provided or the idea is widely known in the business to which it belongs.
2. Revisions
The underlined portions in the above section 1 has been added to the existing provisions in the Act.
(1) The provisions within the parentheses in paragraphs B and C have been added to clarify the parts where availability of protection was not apparent.
(2) Paragraph J has been newly established. An act of obtaining and unfairly using an idea having economic value through business consultation, bidding, or public contest has been written into law as an act of unfair competition.
3. Catch-all provision
The paragraph K below was established on January 31, 2014 as a catch-all provision and has been enforced since (The paragraph was under the heading of J, but has been changed to be under paragraph heading, K, with the addition of the new provision above with the current revisions.)
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K.
An act of infringing upon economic profit of another person by otherwise using a product of investment or efforts of another person without authorization for one’s own business in a way contrary to the customary practices of fair commercial deal-making or orders of competition.
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Due to the requirements of “widely recognized domestically” provision under paragraphs A to C, counterfeiting of goods or services which are not widely recognized domestically could not be prevented in the past.
After the new establishment of paragraph K, many lawsuits have been initiated based on the provision. Various types of unfair trade practices from which protection was difficult to obtain under the previous provisions of Unfair Competition Prevent Act, Design Protection Act, Patent Act have become the targets of new lawsuits and have been found to be acts of unfair competition. For example, copying of trade dress, such as interior of retail shops, etc., copying of packaging of cookies, technology theft, unauthorized copying of designs of entertainer’s accessories, and theft of the poll data, etc., have been found to be acts of unfair compeitition.
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