Unfair competition. Forms of unfair competition

Unfair competition and methods to combat it

People who decide to start their own own business, must be prepared for the fact that they will be required not only a lot of strength and energy for their business to begin to make a profit, but also the presence of a sufficiently large number of such talents as: the ability to analyze and calculate the situation one step forward, to sense consumer demand, the ability compete with other market participants and fight unfair competition. It is the last factor - unfair competition - that can negate all the positive aspects and ruin in the bud any business that begins to develop. The ability to prevent unfair competition against yourself is an extremely important quality, and today we will talk about various aspects of this process.

Unfair competition is any actions of business entities (groups of persons) that are aimed at obtaining advantages when carrying out business activities, are contrary to the Russian Federation, business customs, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to other business entities - competitors, or have caused or may harm their business reputation. Of course, first of all, unfair competition must be suppressed at the legislative level - the main current legislative acts in this area are:

• · Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”
• · antimonopoly legislation based on the Constitution of the Russian Federation, the Civil Code of the Russian Federation, and other federal laws aimed at protecting free competition
• · civil legislation in the field of intellectual property

The said Law “On the Protection of Competition” establishes a ban on the commission of certain actions that entail a deterioration in the economic situation of specific business entities, both for commercial organizations and for officials at various levels. Violation of the norms of the law entails the onset of a certain type of liability for the guilty persons (criminal - Article 178 of the Criminal Code of the Russian Federation, administrative - Article 14.33 of the Code of Administrative Offenses, civil).

In accordance with Article 14 of the above Law “On Protection of Competition”, to unfair competition The following activities include:

• Ш distribution of false, inaccurate or distorted information that may cause losses to a business entity or damage its business reputation
• Ш misrepresentation regarding the nature, method and place of production, consumer properties, quality and quantity of the product or in relation to its manufacturers
• Ш incorrect comparison by an economic entity of the goods produced or sold by it with goods produced or sold by other economic entities
• Ш 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 are used illegally
• Ш illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law
• Unfair competition associated with the acquisition and use of the exclusive right to means of individualization of a legal entity, means of individualization of products, works or services is not allowed.

In addition, methods of unfair competition include dumping, economic espionage, counterfeiting of products, various conspiracies pursuing various goals, etc. - the main thing is that the result of all these actions is to cause significant harm (up to the complete cessation of activity) to a business competitor.

It is worth noting that unfair competition is not common in all of its types, which are listed above. For example, successful campaigns do not strive to create an image for their products that is similar to that of a competing company. On the contrary, manufacturers strive to create a look for their product that will be different from others, so that consumers look for a product on the shelves that stands out, and does not become a gray mass. Thus, experiments were conducted among milk producers. Standard white and blue tones have been used year after year in the design of dairy products. But when adding new ones, more bright colors milk sells much better. This is an example of fair competition, which did not at all affect companies that did not try to modernize the packaging of their products.

A significant number of unfair competitive practices are committed through the use of inappropriate advertising.

• § Discredits individuals and legal entities;
• § Contains incorrect comparisons of the advertised product with the products of other individuals and legal entities, and also contains statements discrediting the honor, dignity or business reputation of competitors;
• § Misleads the consumer regarding the advertised product by simulating the general design, text, advertising formulas, images, music or sound effects used in advertising of other products, or by abusing the trust of others (fraud) or their lack of experience and knowledge;
• § Contains untrue information regarding the characteristics of the product, the possibility of its purchase, cost, delivery, warranty obligations, receipt of medals, awards, research and testing results, service life, etc.

According to the Federal Law “On Advertising”, the advertiser must provide reliable information. However, advertising often does not say anything about the shortcomings or defects of the product, which are revealed after its purchase. For example, in the success of activities financial pyramids like MMM, it was the media, especially television, that played a significant role.

The use of so-called “umbrella brands” has become widespread, especially in the field of advertising alcohol products as a product whose advertising is associated with the greatest number of restrictions. Almost all companies producing or importing alcohol products under well-known trademarks have participated in advertising of products, lotteries or other events that have a similar or identical name to alcohol brands. Alcohol producers, not wanting consumers to forget what their products look like, are forced to resort to cunning and use “umbrella” brands.

The most commonly used method of compromising competitors is called “spraying mud.” As a rule, information messages or advertisements do not mention specific names or information discrediting the product or manufacturer, which makes such actions difficult to punish. The information is presented in such a way that the relationship between the message itself and the compromised object is not clearly visible. The implication is that the logical communication must be carried out by the consumer.

Another modification false advertising is a way of covering up with a reputable company. In such cases, unscrupulous entrepreneurs use as a screen the name of a well-known company on behalf of which this or that activity is allegedly carried out. As a result of such actions, damage is suffered both by the authority of the company whose name is used for unseemly purposes, and by the deceived consumer. An example is an episode from modern Russian practice. Among the victims was a group of Russian artists who lost 30 thousand US dollars as a result of unfair actions, as well as famous company American Express, whose prestige suffered significantly. One of the victims, P. Tyulenev, reported that he heard an advertisement for an American Express credit card on the radio; The advertisement was given by the Moscow representative office of the American company Priority Assets. The company's office was located in a respectable building of the Russian trade union; there was a beautiful golden sign on the building. The office interior was decorated in American style, with expensive furniture and polite staff. The new clients were duly impressed by the company; they deposited $30 thousand into the company account as a minimum contribution plus $750 for annual service. However, using the credit card received from the company in Paris brought a discouraging result - it turned out that P. Tyulenev’s card was cancelled. Upon returning to Moscow, P. Tyulenev found out that the Priority Assets company had disappeared along with the clients’ money. The American Express company stated that it has nothing to do with Priority Assets and this incident.

What are the ways to combat unfair competition? Of course, they must be exclusively legal and legal. To protect your interests from attacks by unscrupulous competitors, you can contact the Federal Antimonopoly Service of the Russian Federation (FAS RF), specifically, the expert council on the application of antimonopoly legislation in the field of unfair competition.

Just as in case of violation of any other rights of citizens, business entities can apply to the court to protect their interests (the case will be considered within the framework of arbitration proceedings).

Article 182 of the Criminal Code of the Russian Federation, on January 1, 1997, introduced criminal liability for knowingly false advertising, that is, for advertising with the help of which an advertiser (advertising producer, advertising distributor) deliberately misleads the advertising consumer. In this case, two conditions must be met: the act must have been committed out of selfish interest and significant damage must have been caused.

Naturally, in no case should one stoop to methods of struggle similar to the methods used by unscrupulous participants in the business environment. Firstly, this would be a direct violation of the law. Secondly, sometimes “black PR” (if this type of unfair competition occurs) can be useful to those against whom it is carried out - with a certain skill, even bad advertising addressed to you can benefit. And, of course, the high quality of the goods and services offered can also significantly neutralize all negative attacks from unscrupulous competitors.

Competition in the market for goods and services is an excellent way to stimulate business entities to improve their activities in all areas - but only if such competition is not unfair. Otherwise, at the first signs of the appearance of unfair competition, first of all, commercial organizations of a specific market segment must immediately use all legal methods to suppress such activities.

It should be noted that today unfair competition is most often a conspiracy with local authorities, which is obvious, however, it is almost impossible to uncover it. Thus, local authorities often initiate endless inspections, imposing bans and fines on those companies that are competitors. Exactly the same “contractual” background is now visible in tenders. Two enterprises deliberately agree on the terms of its implementation and write contracts for their companies. It is often quite difficult to catch this.

The issue of trade secrets is also quite complicated. Very often this concept is exaggerated, and it includes prices that thousands of people see on the shelves near the goods. You can look at them, but you cannot rewrite them - this is strictly monitored by supermarket employees. Unfair competition entails administrative liability. Most often, fines are imposed on the offending enterprise, existing goods are confiscated, they are forced to compensate for damage, and provide a refutation of information that is not true. Most often, they get by with preventive measures and stopping illegal actions.

Unfair competition is present in all countries of the world. However, the fight against it is being carried out with varying degrees of success, so it is too early to talk about its eradication. Most often, as a result of unfair competition, the affected enterprise takes measures to modernize its activities, which is a fairly powerful incentive for further changes.

unfair competition entrepreneurial dumping

Bibliography

• 1. Constitution of the Russian Federation
• 2. Convention for the Protection of Industrial Property (concluded in Paris on March 20, 1883)
• 3. Federal Law “On Protection of Competition” No. 135-FZ of July 26, 2006
• 4. Porter M. Competition. M., 2011
• 5. Yarochkin V.I. Buzanova Ya.V. Business protection systems: protection from unfair competition. M.: Mira Foundation, 2012
• 6. www/businesspravo.ru

Introduction

1 Unfair competition: concept, essence

2 Ways to suppress unfair competition

Conclusion

Bibliography

INTRODUCTION

In modern conditions, it is important to combat unfair competition, which has acquired various forms due to the lack of laws required to regulate competition. The spread of unfair competition methods undermines the foundations of the economy and contributes to the introduction of non-market methods of struggle into relations between economic entities.

Consequently, effective protection against unfair competition is the basis for the operation of a market economy, which at the same time requires a generalization of experience in combating unfair competition and skills in applying such combat.

The purpose of this work: to study the essence of unfair competition and the system of measures to protect against it.

Objectives of this work:

1. define the concept of “imperfect competition”;

2. consider forms of imperfect competition;

3. show what methods of fair and unfair competition exist;

4. study the types of imperfect competition;

5. determine the purpose of imperfect competition;

6. consider the main features of imperfect competition;

7. study ways to protect against unfair competitive actions;

8. give brief description each of the methods of protection against unfair competitive actions.

1 UNFAIR COMPETITION: CONCEPT,

ESSENCE

Competition translated from Latin language means “to collide” and means the struggle between commodity producers for the most favorable conditions for the production and sale of products. Competition plays the role of a regulator of the pace and volume of production, while encouraging the manufacturer to introduce scientific and technical achievements, increase labor productivity, improve technology, labor organization, etc.

Competition is a determining factor in ordering prices and a stimulus for innovation processes (introduction of innovations into production: new ideas, inventions). It contributes to the displacement of inefficient enterprises from production, rational use resources, prevents the dictatorship of producers (monopolists) in relation to the consumer.

Competition can be divided into fair competition and unfair competition.

The main methods of fair competition are:

Improving product quality

Development of pre- and post-sales services

Creation of new goods and services using the achievements of scientific and technological revolution, etc.

But along with fair competition methods, there are other, less legal methods of competition:

The main methods are:

Economic (industrial espionage)

Counterfeiting competitors' products

Bribery and blackmail

Consumer fraud

Fraud with business reporting

Currency fraud

Hiding defects, etc.

To this we can also add scientific and technical espionage, because... any scientific and technical development is only a source of profit when it finds application in practice, i.e. when scientific and technical ideas are implemented in production in the form of specific goods or new technologies.

Unfair competition- violation of generally accepted rules and norms of competition. In this case, laws and unwritten rules are violated.

Art. 4 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” interprets this concept as: any actions of business entities (groups of persons) that are aimed at obtaining advantages in carrying out business activities contradict the legislation of the Russian Federation, business customs, requirements integrity, reasonableness and fairness and have caused or may cause losses to other business entities - competitors or have caused or may harm their business reputation.

Forms unfair competition are established by Art. 14 of the above law. This

· dissemination of false, inaccurate or distorted information that could cause losses to another business entity or damage its business reputation;

· misleading consumers regarding the nature, method and place of manufacture, consumer properties, quality of the product;

· incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities;

· 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;

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

In many countries, dumping, collusion in tenders and the creation of secret cartels, false information and advertising and other methods of unfair competition are officially prohibited.

In Russia there is a specific term “administrative resource”, often used in competition. This usually refers to the violation by government officials of their powers, that is, corruption.

Also, unfair competition often includes the so-called vendor lock-in, that is, a practice in which the supplier of any products or services creates obstacles for the consumer to change the supplier or interact with the products of other suppliers. Suppliers using this practice are rarely held accountable. One of the well-known cases is the lawsuit of the European Commission against Microsoft Corporation.

The range of activities that can be considered dishonest is very wide. The Paris Convention defines unfair competition as the following three types:

– all actions leading to the fact that the consumer may mistake the enterprise, goods, industrial or commercial activity of a given company for the enterprise, goods, industrial or commercial activity of a competitor;

– false statements in the course of business that discredit the enterprise, goods, industrial or commercial activities of a competitor;

– use in the course of commercial activities of indications or designations that mislead the consumer regarding the nature, method of manufacture, characteristics, suitability for a particular purpose or quantity of goods.

Another 12 activities are defined as unfair competition in the commentary to the Model Law on Trademarks, Trade Names and Unfair Competition for Developing Countries. These are the following types:

1) bribery of competitors' buyers, aimed at attracting them as clients and maintaining their gratitude for the future;

2) finding out the production or commercial secrets of a competitor through espionage or bribery of its employees;

3) unauthorized use or disclosure of competitor know-how;

4) inducing a competitor’s employees to violate or break their contracts with the employer;

5) threatening competitors with claims for infringement of patents or trademarks, if this is done in bad faith and for the purpose of counteracting competition in the field of trade;

6) boycotting the trade of another company to counteract or prevent competition;

7) dumping, i.e. selling your goods below value with the intent to discourage or suppress competition;

8) creating the impression that the consumer is being given the opportunity to purchase on unusually favorable terms, when in fact this is not the case;

9) intentional copying of goods, services, advertising or other aspects of a competitor’s business;

10) encouraging violations of contracts concluded by competitors;

12) violation legal provisions that are not directly related to competition, when such a violation allows one to achieve an unjustified advantage over competitors.

Traditionally, there are two models for regulating market competition: American and European. In the American model, legislation aimed at prohibiting monopolies includes a number of rules on unfair competition. In the European model, legislation providing control over monopolies and aimed at combating monopolistic abuses coexists with legislation on unfair competition.

For Russia legal regulation unfair competition is quite new. Since the problem was not developed, everyone understood the concept of unfair competition as something individual and their own. The first legislative definitions of unfair competition in Russia were contained in the Law of the RSFSR dated December 24, 1990 No. 443-1 “On Property in the RSFSR” (clause 9, article 2) and in the Fundamentals of Civil Legislation of the USSR and republics in force on the territory of the Russian Federation (clause 3 Art. 5).

The concept of unfair competition appeared in the legislation of the Russian Federation after the adoption of the RSFSR Law of March 22, 1991 “On Competition and Restriction of Monopolistic Activities in Product Markets.” In Art. 10 of the Law established the prohibition of unfair competition, the content of which was disclosed through sample list forms of unfair competition.

With the adoption of the Constitution of the Russian Federation in 1993, the prohibition of unfair competition was enshrined at the constitutional level. Article 8 of the Constitution enshrines freedom of economic activity, and by virtue of paragraph 2 of Art. 34 of the Constitution of the Russian Federation, economic activities aimed at monopolization and unfair competition are not allowed.

Target unfair competition - to stop a competitor, to prevent him from gaining an advantage by prohibited methods, or more precisely, almost prohibited, since the law often does not mention or list many methods of ensuring superiority.

To the main features Unfair competition (behavior of entrepreneurs) should include the desire to achieve success in competition not at the expense of one’s own achievements, but through the illegal use of either the results of a competitor’s activities, or any measures of influence, both directly on the competing company and on the environment, more often only false or misleading statements.

2 WAYS TO STOP UNCONSCIOUS

COMPETITION

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 suppression of unfair competition is one of the main tasks of the federal antimonopoly body, which is the Ministry of the Russian Federation for Antimonopoly Policy and Support of Entrepreneurship (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.

1. Order of the antimonopoly authority.

The order is a legal fact and is a mandatory written requirement of the antimonopoly authority. It is aimed at the emergence, change or termination of legal relations in the field of application of antimonopoly legislation and the protection of the rights of entrepreneurs. With the help of regulations, the tasks and functions of the antimonopoly agency are carried out (Article 11 of the Law on Competition in Product Markets, Article 22 of the Law on Competition in Financial Markets).

The basis for consideration of cases by the antimonopoly authorities may be representations from the prosecutor or applications from commercial or non-profit organizations, federal and regional executive authorities, and local governments. An application containing information about specific actions of business entities is submitted to the antimonopoly authority accompanied by documents indicating facts of unfair competition.

This is a special legal remedy that the antimonopoly authority has the right to apply in order to stop unfair competition carried out using advertising. This measure, in accordance with Part 4 of Article 2 of the Advertising Law, consists of a refutation of inappropriate advertising, which is distributed in order to eliminate the consequences caused by it.

The public legal obligation of the violating entrepreneur to carry out counter-advertising arises in the event of a violation of the legislation of the Russian Federation on advertising. The deadline for execution is set by the antimonopoly authority that made the decision to carry out counter-advertising, and in accordance with paragraph 1 of Article 29 of the Advertising Law, the costs of counter-advertising are borne by the violator in full.

If counter-advertising was not carried out within the prescribed period, then the federal antimonopoly body that made the decision to carry out counter-advertising has the right to decide to completely or partially suspend the violator’s advertising until the day he completes the distribution of counter-advertising. In this case, the body that made such a decision is obliged to immediately notify all parties to contracts with the violator for the production, placement and distribution of his advertising.

Now let's look at how counter-advertising should be carried out. First, the counter-advertising must be carried out through the same medium of distribution as the rebutted inappropriate advertisement; secondly, using the same characteristics of duration, space, place and order as the refuted advertisement.
The content of such counter-advertising in mandatory agreed with the antimonopoly authority that made the decision. It must be said that cases are allowed when, by decision of the federal antimonopoly body (territorial administration), the means of distribution, characteristics of duration, space, place and procedure for implementing counter-advertising are replaced. But the legislator does not indicate the criteria by which such cases would be determined. According to K. Yu. Totyev, such uncertainty creates the ground for bureaucratic arbitrariness.

3. Product recall from the consumer.

Unfair competition can cause harm not only to competing entrepreneurs, but also to consumers. In such cases, the means provided for by the legislation on the protection of consumer rights are applied.

In accordance with paragraph 5 of Article 7 of the Law on the Protection of Consumer Rights, the manufacturer (performer, seller) is obliged to immediately suspend production (sale), and in necessary cases take measures to withdraw the product from circulation and recall the product from the consumer. If it is established that if the consumer complies with the established rules for the use, storage and transportation of goods (work), it causes or may cause harm to the life, health and property of the consumer, and the environment. Even if the causes of harm cannot be established, the manufacturer (performer) is obliged to remove such a product (work, service) from production. If the manufacturer (performer) fails to fulfill the obligation to remove the product (work, service) from production, withdrawal from circulation and recall from consumers are carried out on the orders of the relevant federal executive body exercising control over the quality and safety of goods, work, services. Losses caused to the consumer in connection with such a recall are reimbursed at the expense of the manufacturer and contractor in full.

4. Invalidity of transactions.

All transactions must comply with the mandatory requirements of competition and monopoly laws. But since in practice this does not always happen, the question arises about the special civil law consequence of illegal transactions - their invalidity.

According to paragraph 1 of Art. 166 of the Civil Code of the Russian Federation, depending on the composition of the legal facts, there are two types of invalid transactions: voidable (transactions become invalid by a court decision), void (the court decision is not part of the legal facts entailing the invalidity of the transaction).

Agreements concluded by business entities operating in the market of one product should be considered void transactions. Such agreements are prohibited by paragraph 1 of Art. 6 of the Competition Law, as likely to lead to negative consequences for competition.

Transactions made in violation of the procedure established in Art. 18 of the Competition Law. They can be declared invalid in court at the request of the antimonopoly authority if they lead to a restriction of competition.

5. Invalidation of an act of a state body or local government body.

The application of this consequence in the legislation on competition and monopolies is due to the fact that prohibitive and binding norms in this legislation are addressed to federal executive authorities, state authorities of constituent entities of the Russian Federation, local governments and other bodies (organizations) vested with the functions or rights of authorities.

The main legal form of their activity is the publication of normative and non-normative acts. The antimonopoly authority has the right to apply to a court or arbitration court to declare invalid, in whole or in part, acts of government authorities that contradict the laws on competition and monopolies.

CONCLUSION

The concept of unfair competition, which is enshrined in legislation, contains a large number of qualifying features that make it not only difficult to understand, but also complicate its application in practice.

In addition to such methods of suppressing unfair competition as an order of the antimonopoly authority, counter-advertising, recall of goods from consumers, invalidity of transactions, invalidation of an act of a state body or local government, in order to increase the effectiveness of these methods when applied in practice, constant interaction between government bodies dealing with the problems of unfair competition is necessary, protection of intellectual property, customs and other authorities among themselves.

An open discussion of the problems of integrity in business and a generalization of the practice of suppressing unfair competition is required - both by the federal antimonopoly body and by the judiciary, chambers of commerce and industry, etc.

Thus, 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.

BIBLIOGRAPHY

1. Gorev V.P., Sergeev S.V. Economic theory. - Irkutsk: IGEA Publishing House, 2000. – 252 p.;

2. Ghukasyan L.E. Ways to improve domestic legislation on protection from unfair competition // Economics and legislation. 2004. No. 5;

3. Eremenko V.A. Features of suppressing unfair competition in the Russian Federation // Advocate. 2000. No. 7;

4. Iokhin V.Ya. Economic Theory: An Introduction to Markets and Microeconomic Analysis. - M.: INFRA - M, 2000. – 348 p.;

5. Tikin V.S. Competition is always unfair / Questions of theory. 2008. No. 2;

6. Shishkin A.F. Economic theory. - M.: Humanitarian Publishing House. VLADOS center, 2003. – 478 p.

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Competition is a special rivalry between subjects of economic relations. Each of them strives to create for himself Better conditions and get maximum business results.

Classification

Competition can be:

• perfect;
• unscrupulous;
• imperfect;
• price;
• monopolistic;
• business;
• banking, etc.

Main types

There are two basic types in the economic system. The first is a theoretical construction, an ideal. This model is used to develop a methodology for analyzing other market structures. The imperfect type is represented by monopoly and oligopoly. These species do not differ in certain actions, but they have a number of specific features.

A monopoly, for example, is usually represented on the market by one fairly large company. For its successful functioning it is necessary to constantly maintain uniqueness. An oligopoly is formed by several companies that have the opportunity to agree on a joint influence on the market. One of the key goals is to maintain stability while maintaining a given level of profitability. Monopolistic competition is understood as a model in which each company does not have a significant influence on the state of the market. Accordingly, subjects act according to their capabilities.

Within this model, the main emphasis is usually on differentiation. In this case, there is no strategic behavior (unlike oligopoly). With the development of the market, issues related to unfair competition between entities have become increasingly relevant. The main steps to regulate relations in the market sphere were taken after the collapse of the USSR.

Normative base

In the Russian Federation, the concept of legislation regulating competition issues is implemented through the approval of a special legal act. Along with a set of antimonopoly provisions, additional rules were included in it. Initially, Law of the RSFSR No. 948-1 did not disclose Art. 10 of this act provided general ban at her. Normally they were also installed. However, this list was approximate. Later, changes were made to the legal act.

Federal Law "On Protection of Competition"

Currently, the new Law of July 26, 2006 is in force. Federal Law "On Protection of Competition""legal and organizational foundations, methods of preventing and suppressing monopolistic activities are established. The regulatory act has updated the tools and unified the mechanism for regulating relations in the financial and commodity markets. The fight against unfair competition has thus reached a qualitatively new level.

Definition

The problem of unfair competition has necessitated the adoption of prompt legislative measures. One of them was change legal framework concerning monopolistic activities. Law No. 135 combined the provisions of regulations No. 948-1 and No. 117. In the new document, the term “unfair competition” has undergone some amendments. The changes, however, did not affect its content.

According to Art. 4 (clause 9), unfair competition is considered to be any actions of economic entities or their groups aimed at obtaining advantages when conducting business activities, contrary to the law, customs of trade, requirements of reasonableness, integrity, fairness, causing or capable of causing losses to other business entities or damage their business reputation.

Specifics

An important conclusion follows from the content of the definition. The key element is always action. Even if all others are present, inaction cannot in this case be considered a violation of the law. This is different from monopolistic activity. Under certain circumstances, this can also be inaction. The problem of unfair competition arises within the framework of relations between subjects in the same market. In this case, the person conducting economic activity and in relation to whom illegal actions are committed, and the party violating the requirements of the law, must be in a certain interaction. They must be competitors.

The key qualifying element is the contradiction of the subject’s actions to the law, the requirements of integrity, justice, reasonableness, and customs of trade. Another important sign of recognition of competition as unfair is the infliction of losses or damage to reputation. The harm or financial loss does not have to be real. In this case, it is sufficient to have the potential to cause them.

Forms of unfair competition

Article 14 (Part 1) of Law No. 135 contains a general prohibition on unlawful actions of some subjects in relation to others. In addition, normally defined various actions, which are regarded as . They are grouped into 5 categories. The law identifies the following:

Important point

The above actions are subject to an unconditional prohibition, regardless of their compliance with the conditions included in the interpretation of the term " unfair competition." Judicial practice proceeds from the fact that the above manifestations do not need to be correlated with the definition enshrined in Art. 4. Provided for in Art. 14 compositions are considered as direct rules applied directly.

Personalization means

Part two art. 14 of Law No. 135 includes provisions that prohibit unfair competition in intellectual property. They do not contain an approximate list of offenses. According to the legal structure, these provisions are close to the norms of Art. 10 GK. By virtue of this article, abuse of rights and the use of legal opportunities to restrict competition are prohibited. The latter is not covered by the definition enshrined in Art. 4 of Law No. 135. However, despite this, the actions of subjects that violate the provisions of Art. 14, part 2, are considered as abuse of rights in other forms.

Dissemination of false, distorted, inaccurate information

This is the first form of unfair competition established in Art. 14. It should be noted that the content includes the dissemination of distorted and inaccurate information. This has special law enforcement significance, since many subjects, avoiding direct attacks, use veiled means. Discrediting is aimed at attracting buyers to products by providing false, distorted or inaccurate information about a competitor, its services or products. These actions can lead to damage not only for the business entity, but also for the consumer. There are also situations when a person disseminates information about himself that does not correspond to reality. However, it does not aim to discredit other economic entities. As key features Unfair competition of this type should be distinguished:

Misrepresentation

It, like the dissemination of defective information, is aimed at attracting consumers to their services, goods or work. However, in this case, attacks against other subjects are not used. An unscrupulous manufacturer provides false information regarding its products. However, misrepresentation is not limited to knowingly false statements. The subject can also provide reliable information, which for one reason or another can form a false idea about the object. In this case, neither intent nor intention to cause damage will matter.

Incorrect comparison

Initially, this composition contained an important clause in the RSFSR Law. In the normative act, an incorrect comparison was regarded as inappropriate advertising. As a form of unfair competition it can be used independently or included in other actions aimed at discrediting the subject or misleading consumers. In the world market there are different attitudes towards the admissibility of using comparisons. Some experts believe that criticism of a competitor, if it is based on facts and is truthful, will be very useful. Other authors fundamentally reject the possibility of comparing products or services. Domestic legislation regulating competition issues does not create obstacles to truthful criticism. Meanwhile, it should be treated with caution, given the obvious interest of the subjects expressing it.

Illegal use of knowledge products

Exchange, sale and other introduction into circulation of products is not allowed if the results of intellectual work and means of individualization of products, services, or legal entities equivalent to them were unlawfully used. This offense is associated with actions capable of causing confusion in relation to another manufacturer. It is caused by a violation of exclusive rights to products intellectual work And

Additionally

The third part of Article 14 of Federal Law No. 135 provides for the possibility of sending a decision of the antimonopoly authority on violation of the provisions of Part 2 of this norm regarding the use and acquisition of exclusive rights to a trademark to invalidate the provision of legal protection. The specified act is sent to Rospatent. This opportunity can be used by an interested person whose rights were violated by an unfair action of a competitor.

Unfortunately, honor and dignity do not always have a place in the business world. To eliminate competitors who are beginning to gain popularity, companies resort to unfair competition. Anything that can somehow harm and ruin a reputation is used. All this is unfair competition. Today we’ll talk about it.

The concept of unfair competition implies a violation of all generally accepted norms and rules on competition, despite the fact that this is a direct contradiction of Art. 34 clause 2 of the Constitution of the Russian Federation and current legislation in general.

Types of unfair competition

The forms and types of unfair competition can be different. Everything depends solely on the development of the imagination of the company, which decided to “push” a competitor out of the market or at least “shake” its position. We list here the main methods.

• . Focused price policy companies that reduce the cost of goods, forcing competitors to operate at a loss and lose profits.
• Methods that allow you to directly or indirectly misinform consumers. For example, the spread of various rumors among the masses that have no basis, the release of products under a competitor’s brand of deliberately low quality.
• Forceful influence on a competitor. Processes are being used that clearly contradict the Criminal Code of the Russian Federation: blackmail, threats, damage to property by arson, kidnapping of competitor officials. Sometimes things can go as far as physical elimination competitor. This category also includes influences such as pressure through connections with officials, police and tax authorities, and the SES. From the same category is the sending of an anonymous or explicit appeal to authorities, causing numerous checks. Sometimes corrupt government officials themselves plant something that becomes evidence against the business owner.
• Unfair competition through discredit. In means mass media and other available places, data begins to appear that discredits the reputation of the company and the products it produces or sells.
• Theft. This could be programs, a violation, or perhaps such a manifestation of espionage as reducing personal costs through the development of a competitor.
• Conspiracy, whether formal or not, of two or more companies against third parties.
• Various types of stock exchange manipulations valuable papers not in favor of a competitor.
• Establishing a boycott or calling for such action on the goods and services of a competing company.
• Use of insider information in work.

The problem with unfair competition is that it is difficult for consumers to recognize the “symptoms” that they are being deceived. Many people are accustomed to taking incoming information at face value. This makes it even more difficult for the companies against which the fight is organized.

The problem with unfair competition is that it is difficult for consumers to recognize the “symptoms” that they are being deceived.

If you notice signs of illegal competition against your company, do not make a decision based on emotions, do not try to take revenge with the same tools. In this case, there are antimonopoly laws and.

If guilt is proven, the perpetrators will be held accountable for their actions. The punishment depends on the type of crime: if there is no violation of the laws of the Criminal Code of the Russian Federation, a fine or deprivation of the right to engage in activities will be imposed, otherwise imprisonment is provided.

Real cases of unfair competition

Illegal types of competition are often used in trade. The product market is the most vulnerable, since it is much easier to influence crowds of consumers than to influence a single user. It is enough to start a rumor and it will immediately spread among the masses.

One of the most striking examples of this kind is the campaign against Coca-Cola, which many people probably heard about at the beginning of the 2000s. There were rumors that the secret ingredient in the drink was worms. Only the lazy did not whisper about this topic. Of course, such news could not go smoothly for the company, but it “stepped over” this, remaining in demand to this day. And there was no need to reveal secrets either.

A skillful use of unfair competition is to “throw mud” so that it is difficult to undermine. For example, an advertisement was published in one popular regional newspaper: “Yesterday in the supermarket “...” at the address ... a poisonous snake was missed. We ask you to return it for a substantial reward.” After such a message, most customers began to bypass the store, moving to a neighbor to do their shopping.

And proving that the message was fabricated is very problematic. Fortunately, this particular story serendipitously ended with the punishment of the attacker, the owner of a large competing supermarket chain. But there are many more “unhappy” stories.

The most popular type of denigration of competitors is advertising. It is seen by the overwhelming number of capable citizens who make decisions about purchasing products of a particular brand, in a particular store. In commercials and on billboards, there are often examples of unfair competition, when a brand or store, while advertising itself, begins to belittle its competitors. Sometimes this happens clearly, and sometimes almost imperceptibly.

Consider the recently shown TV commercial for ARKO shaving products with the slogan “It’s better for a man to eat,” clearly directed against the similar slogan of Gillette. Or the sensational banner “Our Brides don’t break” from the Hyundai Solaris advertisement as a reaction to the Lada Vesta promotion under the slogan “Time to part with the BRIDE.”

How to prevent unfair competition

Preventing unfair competition is very difficult, and sometimes even impossible. The maximum that can be done is to nip the operation in the bud at the moment of its formation, before the action spreads to the general public. Your own security service can handle this. The difficulty is that you cannot predict in advance what measures a competitor will take.

Never treat such actions carelessly. If an incident of illegal competition took place, bring the matter to its logical conclusion by filing a lawsuit against the participants in the process. This will reduce the likelihood of wars starting again on the part of other companies.

According to experience and observations, in Russia unfair competition is beginning to gain momentum following the West. Marketing wars have been going on there for a long time. But in Russia the law is much stricter. For example, in our country it is unacceptable to mention competitor brands in advertising of any kind. In other countries there is no such ban.

We continue to learn from the experience of foreign companies and be guided by their example, but they quite often act on the principle: if you can’t beat a competitor with prices and quality, ruin it. This leads to the emergence of unfair competition, in other words, unfair competition.

Unfair competition– this is a failure to comply with the moral and ethical laws of competition, those norms and rules that have been formed over the entire existence of society.

The concept of unfair competition includes the actions of business entities that carry out their activities using methods that contradict the laws of the Russian Federation, business customs and traditions, moral standards, the requirements of justice and reason. Such competitors have caused or may cause losses or spoil the reputation of another entrepreneur (business entity).

Unfair competition aims to prevent a competitor from operating and obtaining advantages. To achieve the goal, not entirely legal methods are used (the law does not mention all the methods of conducting fair competition, which is what dishonest entrepreneurs use).

Features of unfair competition: the desire to gain advantages not through one’s own achievements, but through the use of information about a competitor or the results of its activities (for example, using any measures of influence on the company, disseminating deliberately false information about the company, etc.).

Main signs of unfair competition

Based on the definition formulated above, the following signs of unfair competition can be named.

Sign 1. The presence of an action by an economic entity or group of persons

A business entity or a group of competitors takes any action, i.e., exhibits activity that can be qualified as unfair competition. Lack of action (inaction) cannot be classified as unfair competition. The areas in which such activity may occur are diverse: production, sales, provision of services, etc.

Sign 2. Orientation of action to obtain benefits in the course of business activities

The focus of action on obtaining competitive advantages in the process of carrying out commercial activities limits the intensity of the behavior of a business entity (one or several persons) in terms of the goal that is achieved through this activity. The entrepreneur's task is to gain competitive advantages as a result of commercial activities.

In this case, it is implied that unreasonable privileges are obtained when unfair competition is used, because competitive advantages obtained as a result of the use of legal, generally accepted business practices and tools are considered as the result of fair competition.

Sign 3. Contradiction of actions with legislation Russia, the customs that have developed in business circles, the requirements of morality and morality, decency and fairness as one of the signs that determine unfair competition, contains essentially 3 sets of requirements that may be contradicted by the activities of a business entity.

1st group requirements relate to discrepancies between the actions of the entrepreneur and the laws of the Russian Federation. Such actions are considered illegal behavior.

2nd group refers to discrepancies between the actions of an entrepreneur and the customs of doing business. The customs of business circles are unwritten rules of behavior that have developed and are applied in a certain area of ​​entrepreneurship. They may not be recorded in the contract because they are observed as a matter of course. As a rule, customs are established between business entities.

3rd group refers to the contradictions of an entrepreneur with moral laws and the requirements of justice. They characterize the ethical side of entrepreneurial activity and competitive relations.

Sign 4. Existence of actual or potential losses from a competing entrepreneur, which arose due to the use of unfair competition in relation to legally important property consequences.

When determining the actions of a business entity (group of entrepreneurs) as unfair, the formula by which losses are calculated takes on a slightly different content. This is explained by the fact that the law defines 2 types of undesirable consequences:

1) actual damage (consequences that have already occurred);

2) potential damage (consequences that have not yet occurred).

Actual damage includes only that part of the losses that were expressed in the form of expenses incurred by the victim (competing entrepreneur) in order to rehabilitate the violated right that suffered due to the fact that unfair competition was used in relation to it.

Potential damage includes lost profits and future costs that a competing entrepreneur will need to incur in order to rehabilitate the violated right.

Sign 5. Existence of actual or potential harm damage to the good name of a competing entrepreneur due to actions taken.

The concept of “harm to the good name of an entrepreneur” implies any derogation of his merits as a business entity. Moreover, it can be expressed in material and intangible form.

The material type of harm caused to the good name of the entrepreneur is expressed in the damage that resulted from the fact that unfair competition was used against him. This may manifest itself, for example, in a drop in the value of a good name as an intangible asset.

The intangible type of damage caused to the good name of the entrepreneur is expressed in the loss of respect and good opinion about entrepreneurial abilities and his business qualities in business circles and in the eyes of the public. This loss may provoke a decrease in the number of clients, refusal to cooperate, etc.

Material and non-material damage caused to the good name of an entrepreneur can be actual or potential.

• Cooperation with competitors: how and why to be friends with rivals

How to prevent unfair competition using analysis

Are you confident that you know the strengths and weaknesses of your competitors and can assess their potential and goals, current and future strategy? Perhaps they already have plans that you are not aware of, and tomorrow your sales volume will decrease due to the launch of a new rival website or the launch of a new product on the market.

What can you do today to find out your competitors' plans and avoid unfair competition, said the editors of the Commercial Director magazine.

What are the different types and forms of unfair competition?

The Federal Law “On the Protection of Competition” discloses the forms of unfair competition, and also contains a ban on such:

Unfair competition includes the receipt and use of prerogatives over funds that are a manifestation of the individuality of the entrepreneur or the product he produces.

There are countries in which some methods of unfair competition are prohibited at the legislative level, for example: artificially low prices (dumping), pre-fixed bids, deliberate distribution false information and some others.

In our country, when conducting competition, the so-called administrative resource is often used, which means corruption, in other words, the use of official position by civil servants holding high positions.

Unfair competition in the market quite often manifests itself in the use of vendor lock-in. In this case, the supplier of the product or service creates conditions for the consumer that prevent him from changing the supply company and using the goods or services of other manufacturers. As a rule, such organizations remain unpunished. However, there are cases when companies are nevertheless brought to court (for example, a lawsuit against the world-famous Microsoft corporation).

Unfair competition can manifest itself in different ways. The Paris Convention defines the following types of unfair competition:

1) actions that lead to the consumer mistaking the company’s products/services for the products/services of a competing company;

2) false statements that have a detrimental effect on the image of a competing company or a specific business entity;

3) provision of information that can mislead the consumer (inaccurate instructions about the conditions and place of manufacture of the product, its technical characteristics and methods of application).

The Commentaries to the Model Law on Unfair Competition define the following types of unfair competition:

1. bribery of competitors' buyers, aimed at attracting new consumers of its products and maintaining their loyalty;
2. clarification of industrial or commercial secrets a competing company, using bribery of employees or introducing a spy;
3. know-how disclosure competitor company or its unlawful use in its activities;
4. inducing a competitor's employees to violate terms of the contract or its termination with the employer;
5. threat to competitors with lawsuits about the unlawful use of a brand or patent, if these actions are aimed at reducing competition in the market and are unfounded;
6. boycott of trade a competitor in order to free up space in the market, in other words, preventing competition;
7. dumping, i.e. selling products at a specially reduced price;
8. creating the impression that the consumer is being given the opportunity to purchase on unusually favorable terms, when in fact this is not the case, in other words, offering the consumer an illusory benefit;
9. intentional copying of goods and other items of activity of the entrepreneur (for example, advertising, services);
10. encouraging contract violations, which are concluded with entrepreneurs or competing companies;
11. release of advertising in which comparison is made with products of competing companies;
12. violation of legal provisions, which cannot be attributed to the manifestation of competition, but which lead to the establishment of advantages over competitors, and quite often these advantages are not justified.

Expert opinion

How to protect a trade secret

Vladimir Kiselev,

managing partner consulting company"ExDev", Moscow

One of the main channels of unfair competition is the staff. Moreover, they can transmit information to competitors intentionally, in pursuit of material gain, and accidentally, so to speak, through negligence. To ensure that information constituting a trade secret is protected, a number of measures must be taken.

1. Increasing employee loyalty. It is very important that the company organizes an effective system of personnel motivation and develops rules of corporate behavior that will take into account the interests of not only the company, but also the employees. If employees have a loyal attitude towards the company, they will not only retain confidential information, but will also make every effort for the further development and success of the company.
2. The existence of trade secret protection should be clearly explained to employees, informing them about the responsibility for this violation.

• Trade secret agreement: how to avoid mistakes

What liability is provided for unfair competition?

In Russia, unfair competition is punished both administratively and criminally.

The control function is carried out by the Federal Antimonopoly Service (FAS) with the help of territorial departments. They ensure that antitrust laws are not violated, consider cases of violation of the Competition Law, and issue decisions and orders requiring their elimination.

• Administrative responsibility

If the action of an entrepreneur conducting unfair competition cannot be classified as subject to criminal punishment, then he will be brought to administrative responsibility. Unfair competition in the Russian Federation is usually punished by a fine. The Code of Administrative Offenses of the Russian Federation (Article 14.33) does not provide for confiscation of an entrepreneur’s property, suspension of his activities and other punishments.

Article 14.33 of the Code of Administrative Offenses of the Russian Federation in part 1 provides for penalties in the amount of up to 50 thousand rubles, in part 2 the possibility of a fine equal to the revenue received as a result of unfair competition is provided.

Punishment may follow within a year after the commission of illegal actions. In this case, it is necessary to pay attention to the frequency with which unfair competition occurs (once or systematically). In the event of a regular violation of the Competition Law, it is necessary to establish exactly the moment from which the countdown begins in order to determine its statute of limitations. This is very important, because after a year (the statute of limitations) has passed, an unscrupulous entrepreneur cannot be held accountable.

The procedure for bringing a business entity to administrative liability for violating the law on unfair competition is as follows.

The Regulations on the FAS state that the materials on the case are considered by a special antimonopoly commission, which, after hearing both sides of the conflict, studies the documents and materials provided and makes a decision. Moreover, you can submit it to the court and appeal. This development of events is advisable if, as a decision, the commission issued an order to the entrepreneur to eliminate violations of the Competition Law, because while the application is being considered in court, the validity of the legal act is suspended.

And the order itself may become the subject of judicial review as a non-normative act official.

It is very important not to delay contacting the court! To appeal an order or decision issued after the FAS established unfair competition, you have only 3 months from the date the act was issued or from the moment you learned about it.

A case of administrative violation can be initiated on the basis of the entry into force of a decision of the commission that regulates monopolistic activities and unfair competition and which establishes the fact of a violation of the law. If such a need arises, an investigation may be conducted. When an administrative investigation is carried out, a protocol is drawn up and a decision on punishment is made, which can be appealed within 10 calendar days.

• Criminal liability

Suppression of unfair competition through criminal proceedings is possible if the result of illegal actions was the infliction of large damage to a competitor (over 5 million rubles) or the receipt of profit in the same amount. Special police units are vested with the powers to investigate such criminal cases. The procedure for office work is established in the Code of Criminal Procedure of the Russian Federation.

Expert opinion

How to bring an unscrupulous competitor to administrative responsibility

Valentina Orlova,

Head of Intellectual Property Practice at Pepelyaev Group, Moscow; patent attorney of the Russian Federation, professor, doctor of legal sciences

Registering a trademark is one of the best ways to protect it. Many entrepreneurs do not do this, thereby exposing themselves and their business to additional risk. A series of fairly simple actions are carried out: a trademark is registered, similar products are produced under this mark, followed by the presentation of claims of “illegal use of the brand” to the previous manufacturer of the product and an offer to buy back the trademark or compensate for damage resulting from its use (usually called , indecently large amounts).

The regulation of unfair competition with the subsequent bringing of business entities to administrative liability occurs as follows. The FAS determines the procedure according to which the materials of the case on violation by entrepreneurs of the Law on Protection of Competition will be considered. Collected materials are transferred to a commission that will hear the opinions of the conflicting parties, study the case materials and make a decision. It can be appealed in court or in the order of subordination. For entrepreneurs who have received an order from the commission to eliminate violations of the law, going to court is very advisable, since the implementation of the order is suspended during the judicial review. The order becomes the subject of appeal in court as a non-normative act of an official.

• Commercial information and its protection: we use IT methods

Unfair competition: examplesfrom judicial practice

Example 1. The Competition Law (Article 14, Part 1) states that unfair competition is carried out by misleading about the properties of a product, the conditions and place of its production, the qualitative and quantitative indicators of the product, or through misinformation about the manufacturer. This is what Flagman Publishing House LLC did with regard to the “Interior&Home” catalogue. The publishing house was misleading by inflating the circulation data of the publication. For six months, its managers indicated that the catalog's circulation was 5 thousand copies, which was unreliable information and misled buyers and advertisers, since this factor was decisive for advertising placement. Consequently, the provision of false data on the quantitative indicators of the catalog gave this business entity certain advantages due to the fact that another entrepreneur working in the same area suffered losses.

Example 2. The company, which was engaged in the sale of South Korean cars, used in its work methods of unfair competition, which are referred to in the Law on the Protection of Competition (Article 14, Part 1, Clause 1). She (through third parties) sent letters to counterparties of a competing company with a message that their competitors were practicing illegal actions, which consisted of free re-registration of vehicles to a company under their control.

The court, relying on the Resolution of the Plenum of the Supreme Court on legal proceedings in cases of protecting the honor and dignity of individuals and legal entities, on preserving their reputation (Resolution No. 3 of February 24, 2005), concluded that as defamatory information good name companies should consider false information about unlawful actions of a business entity. The company was accused of violating the laws of the Russian Federation, dishonesty towards consumers, unethical conduct of commercial activities, and violation of business rules, which negatively affected the reputation of the entrepreneur. The information provided in the letters was found to be unreliable and discrediting the good name of the counterparty.

The court noted that subjects of unfair competition received certain advantages, which were expressed in an increase in the number of clients, discrediting a competing company and strengthening their reputation.

Example 3. An entrepreneur posted false information about a competitor in a newspaper and on an Internet website. In the article, he pointed out his shortcomings and accused him of dishonesty, called him “the weak link of entrepreneurship” and “sticky” and declared his own reliability.

In this case, there was a violation of two articles of the Law on Protection of Competition: clause 3, part 1, art. 14 (incorrect definition) and clause 1, part 1, art. 14 (dissemination of knowingly false information). Firstly, the court noted that the definitions used in the article are offensive, since they are aimed at characterizing a business entity as a consumer of someone else’s labor for their own enrichment, in other words, the entrepreneur was accused of unlawfully receiving profit. Secondly, the court drew attention to the fact that there is absolutely no evidence to support assurances of one’s own trustworthiness.

Example 4. Several Russian enterprises working in the food production sector launched sauces called “Thousand Islands”/“1000 Islands” into trade in 2003. The recipe for making the sauce has been published more than once in various thematic collections. In mid-2005, Preobrazhensky LLC dairy plant"introduced a sauce with the same name into circulation.

LLC registers this trademark and receives documents granting the right to produce and sell these products. Surely the management of the plant knew that a similar sauce had already been put into circulation by competing companies, nevertheless, the company received the full right to sell Thousand Islands/1000 Islands sauces and took advantage of it.

In October 2008, the FAS found that unfair competition had manifested itself in the product market: Preobrazhensky Dairy Plant LLC was punished with a fine of 100 thousand rubles. The Moscow OFAS RF found that the actions of the LLC regarding the acquisition and use of a trademark do not comply with the principles of fairness and decency and are aimed at establishing a competitive advantage. These actions could cause damage to other business entities and damage their reputation, therefore, there is unfair competition.

Example 5. Since 1992, the Computer Technologies company has used the name “Censor” to identify the software and hardware complex. In 2005, former employees of the company opened their own company, Technotronics, and submitted an application to register Censor. Both companies were engaged in the production and sale of equipment designed to monitor the operation of electrical and cable networks, and worked on modernizing computer programs. Therefore, they were market competitors software. After the Technotronics company received documents for the ownership of the Censor trademark, it informed agricultural consumers that this trademark can only be used for their company’s products. Computer Technologies' response was to file an application with the Antimonopoly Committee alleging unfair competition. The Committee considered the claim and recognized the actions carried out with the Censor trademark (according to certificate No. 302270) as unlawful, falling into the category of unfair competition.

• Fierce Competition: 10 Unconventional Ways to Stand Out

What is the fight against unfair competition using administrative methods?

To choose effective method protection against unfair competition, the entrepreneur will need to conduct an in-depth analysis of his activities, determine the purpose and method of implementing certain actions, and decide which measures may be the most effective to suppress unfair competition.

Regulation of unfair competition is possible by using administrative resources aimed at suppressing this violation. The key task of the federal antimonopoly body is precisely to suppress unfair competition.

Method 1. Order of the antimonopoly authority.

An order is a requirement expressed in writing by the antimonopoly committee, which is subject to mandatory execution and is a legally valid document. As a rule, its goal is to influence legal relations that are regulated by legislation on unfair competition, protecting the rights of business entities. The regulations serve to solve the problems and implement the functions of the Committee on Antimonopoly Policy and Business Support.

Antimonopoly authorities may consider cases based on statements from organizations or submitted by the prosecutor's office. An application to the antimonopoly committee must contain information about the actions of entrepreneurs, and documents must be attached to it confirming the fact of unfair competition.

The essence of this type of advertising is to suppress its impact on the consumer. The antimonopoly authority has the right to use counter-advertising as one of the ways to combat unfair competition, which has a legal basis.

If an entrepreneur violates the Law of the Russian Federation on Advertising, then he is obliged to conduct counter-advertising. The decision on its implementation is made by the antimonopoly authority, which also sets the deadlines. All counter-advertising costs are borne directly by the violating entrepreneur.

If the entrepreneur, from whom unfair competition was applied, did not conduct counter-advertising within the specified time frame, then the antimonopoly committee has the right to prohibit advertising (in whole or in part) until the counter-advertising is distributed in full. The antimonopoly authority that made such a decision is obliged to notify all entities related to the violator with contractual obligations for the production and placement of advertising products.

What is the mechanism for carrying out counter-advertising? First of all, it must be carried out in the same way as the main advertising of the offending entrepreneur. Counter-advertising must coincide with the refuted advertising in the following respects: time duration, place and procedure for implementation.

The content of counter-advertising must be agreed upon with the antimonopoly authority that made the decision to carry it out. It is worth noting that the federal antimonopoly authority is not prohibited from making changes to counter-advertising. The duration of the event, the advertising space, the place of counter-advertising, and other parameters may change. The Law does not define specific criteria within which these adjustments are allowed.

Method 3. Product recall from consumer.

The manifestation of unfair competition can have a negative impact on both business entities against which unfair methods of struggle were taken, and on consumers. In this case, the methods provided for in the Consumer Protection Law are used.

This legislative document states that the manufacturer (seller) of a product or service must immediately stop further production (distribution) of the product. Situations are possible when a product is completely withdrawn from trade and recalled from the consumer. This occurs if, despite compliance with all requirements regarding the methods of storage and use of the product, it is still unsafe for the life, health and property of the consumer, and harms the environment. Even if it is impossible to determine the cause of harm, the manufacturer (distributor) must stop further production. If the violating manufacturer does not stop production (sale), then the product is withdrawn from circulation on the basis of an order issued by the federal executive body, which controls the quality and safety of the product or service offered to consumers. In case of withdrawal of products from the consumer, the manufacturer (manufacturer) is obliged to fully compensate for the material damage caused.

Method 4. Invalidity of transactions.

Transactions concluded by business entities must be legally justified and comply with the requirements of the Law on Protection of Competition. However, the practice of unfair competition shows that this is not always observed. This leads to the need to recognize such transactions as invalid.

There are 2 types of invalid transactions: voidable and void.

1. Voidable transactions are recognized as illegal in accordance with a court decision.
2. Void transactions are canceled without judicial intervention or decision.

Transactions that were concluded in non-compliance with the procedure provided for by the Competition Law may become voidable. A claim to invalidate a transaction may be filed by the antimonopoly commission in order to introduce restrictions on unfair competition. Void transactions mean agreements that are concluded between entrepreneurs who are representatives of the same product market. In this case, the prevention of unfair competition is provided for by law.

Method 5. Invalidation of an act of a state body or local government body.

According to the legislation of the Russian Federation on the protection of competition and monopoly, federal and government bodies authorities perform prohibitive and obligatory functions, therefore the law provides for this consequence. The main legal form of activity of government bodies is the publication of acts (regulatory and not). If these acts violate the Law on Protection of Competition or partially contradict it, then the antimonopoly commission has the right to go to court to have them declared invalid.

• Competition: strategies and methods of confrontation

Independent protection against unfair competition

The use of unfair methods of competition is carried out to achieve certain goals.

Goal 1. Obtaining information about a competitor, which is closed to outsiders.

This refers to the trade secret of an enterprise, which consists of information about the advantages and disadvantages of the company, revealing its strengths and weaknesses. You can obtain this information in the following ways:

• using the information posted in the state register;
• collecting material of interest with the help of commercial structures associated with government authorities;
• submitting a statement of claim to a judicial authority from a dummy, presenting fictitious claims (ultimately the claims are abandoned);
• initiating inspections by bodies of control and supervision over the activities of entrepreneurs.

It is unrealistic to ensure complete protection of an enterprise from industrial espionage and information leakage. However, these risks can be minimized. It must be taken into account that methods of unfair competition include obtaining information from company employees. Therefore, management must ensure that access to the database meets certain technical conditions and that enterprise employees are not left unattended. To do this, it is necessary to develop rules for access to information, enter into agreements on maintaining trade secrets, etc.

If we talk about sources that are publicly available, then in this case there can be no question of any secret. The company independently submitted this information to the public. However, you need to monitor the receipt of this information by your competitors in order to understand what exactly is of interest to them.

If unfair competition has been applied to you, or you become aware that someone has obtained information located on a closed source, then your company’s lawyer should get involved in the work (submit an application to the relevant authorities), since in this case a violation occurs both administrative and criminal legislation.

Work with suppliers and clients of the company cannot be ignored. Of course, it is impossible to completely stop communicating with them. However, it would not be superfluous to inquire about their reliability by reading the information provided in open sources.

Goal 2. Weakening the competitor’s position in the market.

The concept and forms of unfair competition provide for the weakening of market positions. Moreover, this can be done with the assistance of officials and government agencies a number of methods.

1. Creating obstacles to the development of the enterprise. For example, prevent cooperation with certain suppliers, not allow the company to participate in a tender, not give the opportunity to expand by equipping additional production facilities, etc.
2. Using administrative resources to put pressure on management. Entrepreneurship is primarily carried out by people. Therefore, distracting them from work by initiating criminal proceedings, removing company managers from work, etc. can disrupt the usual rhythm of the enterprise’s work.
3. Creating difficulties for carrying out economic activities. In this case, the authorities that monitor the work of entrepreneurs are involved, and they, in turn, can make a decision to suspend the company’s activities, to impose penalties, to bring management to justice in criminal proceedings, etc.

Attracting administrative resources is one of the most reliable ways to prevent unfair competition. But you shouldn’t give up here either. First of all, you have the right to appeal the actions of an official to his immediate supervisor by filing an appropriate application. Then you have the right to appeal to the judicial authorities. Let's say they come to your company for an inspection: it is best if it takes place in the presence of your lawyer or attorney. If a legal representative has the necessary knowledge, then he is able to ensure that the inspection is carried out in accordance with the law.

It also doesn’t hurt to have your own administrative resource, which can be used in the event that unfair competition is shown against you. The main thing is that you clearly know your rights and be careful.

Goal 3. Displacement of a competitor from the market.

Often unfair competition forces an entrepreneur to stop his activities, blocking the path to further development. In addition to the above methods of conducting unfair competition, there are also more stringent methods.

• Blocking the company's activities. This does not mean braking, but a complete stop of activity. As a rule, this happens by a court decision, which is made on the basis of acts drawn up by inspection bodies, or based on the results of consideration of claims.
• Seizure of enterprise documentation.
• Isolation of enterprise managers (the most effective method).
• Publication in the media of information discrediting the reputation of the enterprise. People are accustomed to unconditionally accepting messages provided in the media, which means that this resource has a huge impact on the consumer. Consequently, unfair competition can (and will) be carried out with its help.

However, even in these cases you should not lose heart and give up. If competitors have involved a judicial body, then do not forget that for an unfair decision, a judge can be deprived of his position, and sometimes even brought to criminal liability. Therefore, it is very important that the company has a competent lawyer who can quickly respond to all illegal actions carried out against the company.

If competitors have engaged a private security company, then you have the right to file a complaint and thus stop unlawful actions against your company.

Isolation of enterprise managers means their detention, which, undoubtedly, can be called the most severe method of struggle. However, it is not used so often, because it is a rather expensive service and, as a rule, it is not affordable for representatives of medium and small businesses. Moreover, this is also a rather labor-intensive process, which consists of a number of mandatory activities, and at any stage the matter can be slowed down if the “right” people are involved.

• Competitive strategies of the organization to capture the market and peaceful coexistence in it

Expert opinion

Illegal methods of ousting a competitor from the market

Alexander Orlov,

partner of the Moscow Bar Association "Grad", Moscow

One large company received a copy of the investigator’s resolution, which stated that the company’s documents were to be confiscated because criminal proceedings had been opened against one of the company’s counterparties. After reviewing the resolution, the company decided to bide its time and not take any action, since it did not work with the specified counterparty and the managers did not know the investigator who signed this document. But the very next day the SOBR burst into the company’s office (the function of this security force is to suppress armed resistance, and in this company the main staff consisted of women who were well over forty). The result of the “assault” on the company was the seizure of absolutely all documentation. After this, several more criminal cases were initiated, this time against the leaders of the company.

The investigator who issued the order acted unlawfully. Over time, the criminal proceedings were discontinued. However, during the proceedings, the company lost one very profitable client who did not dare to enter into a business relationship with a “dubious” partner. The company's managers came to the conclusion that unfair competition was applied to them.

How to stop unfair competition and avoid fines

The paperwork regarding unfair competition is a difficult and time-consuming process in which a lawyer is involved. This is due to the fact that in order to prove the honesty of a businessman, it is necessary to collect quite a lot of information and prepare certain documents for submission to the antimonopoly committee.

What can exempt you from paying fines?

1. Legally obtained evidence of your innocence.
2. Lack of corpus delicti in your actions.
3. The insignificance of the offense.
4. Forced use of illegal work methods, etc.

Suppose the ban on unfair competition is ignored by a competing entrepreneur, but the violations are not serious, then prosecution under the Code of Administrative Offenses of the Russian Federation will be denied. The following factors may indicate the insignificance of the offense:

• the company has not suffered any real damage (or it is completely insignificant);
• the entrepreneur himself has ceased to use a trademark or other means of individualization;
• the entrepreneur who owns the right to use the trademark did not take action to protect his rights before contacting the antimonopoly authority;
• a business entity using a means of individualization illegally experienced serious financial difficulties;
• the entrepreneur-right holder and the entrepreneur-infringer are partners, etc.

Information about the experts

Vladimir Kiselev, managing partner of the consulting company "ExDev", Moscow. In the past, Director of the International Business School of the Moscow Chamber of Commerce and Industry, held senior positions in the SBS-Agro Banking Group, NIKA Group. Author of the TPS organizational development program, author of a number of seminars, trainings and publications on the topics of strategic management, human resource management, organizational development, and team building.

Valentina Orlova, Head of Intellectual Property Practice at Pepelyaev Group, Moscow; patent attorney of the Russian Federation, professor, doctor of legal sciences. Graduated from the Moscow State Law Academy. For a long time worked in the Federal Service for Intellectual Property, State Advisor of the 2nd rank. Currently he is a professor at the Department of Industrial Property of the Russian State Academy of Intellectual Property, a member of the UNESCO Department on Copyright and Other Intellectual Property. In 2006 she was awarded the gold medal of the World Intellectual Property Organization. One of the developers and commentators Russian legislation about trademarks. Member of the scientific advisory council at the Intellectual Property Rights Court.

Alexander Orlov, Moscow Bar Association “Grad”, Moscow. The Moscow Bar Association "Grad" provides legal support to Russian and foreign companies. Specializes in legal protection enterprises in the field of investment, real estate, corporate governance and competitive relations.