Unfair competition in the commodity market. Unfair competition and the form of its manifestation in Russia Unfair competition in the commodity market

As a rule, the evolution of industrial and competition policy reflects not so much the peculiarities of the relationship between them as changes in the prevailing point of view on state intervention in the economy as a whole.

Where the state is treated as a necessary evil, and the principle of free trade (lassez-faire) is proclaimed as dominant in economic life, both competitive and industrial policies are limited to the narrow scope of antitrust regulation and selective adjustments for the negative effects of the market mechanism itself. It is believed that the perfect functioning competitive market itself eliminates existing monopoly effects and prevents their creation in the future. The state, on the other hand, acts as a factor of a monopoly rather than a competitive nature.

Where the state is given a more significant role as a regulator of market activity, and competition is interpreted from the standpoint of a balanced assessment of creative and destructive moments, both industrial and competitive policies acquire a broader interpretation. Antitrust regulation is being transformed or accompanied by a comprehensive pro-competition policy, and industrial policy is using more global public welfare criteria, including the structural dimension.

Overcoming imperfections in product and financial markets achieved through a harmonious combination of the principles of competition and industrial policy. Competition policy is aimed at preventing the monopolization of markets by individual agents. Industrial policy aims to provide selective support to those entities that, due to market imperfections, have been deprived equal rights competition. In this understanding, one can find the basis for reconciling the interests of the two types of policies as complementary levers of state influence on the economic situation.

Competition is not in all cases a self-reproducing mechanism. The state must support competition to increase economic efficiency and achieving economic growth goals. However, the state may limit competition based on the objectives of industrial policy. Therefore, when making decisions in the field of competition policy, it is necessary to evaluate all economic consequences and not only directly affecting competition as such. On the other hand, since industrial policy measures, explicitly or implicitly, willingly or unwillingly, have an impact on the competitive situation in the industry and in the economy as a whole, the development of industrial policy requires coordination with antimonopoly regulation.

Contradictions and unregulated relationships between industrial policy and competition policy can additionally slow down the economic growth and (or) the development of certain industries and spheres of the national economy.

Economic policy

Fair and unfair competition in the commodity market

Basic definitions

Unfair competition- a set of unethical dishonest methods and methods of economic rivalry between business entities.

fair competition- playing by the rules, the norms of the current legislation, established business practices.

The concept of unfair competition appeared in France in 1850. At the international level, it was recorded in Art. 10 of the Paris Convention for the Protection of Industrial Property in 1863.

Types of unfair competition

■ Illegal use of the name, trademark, signs of a competitor.

■ Copying a competitor's products.

■ Discrediting a competitor's products and reputation, spreading false information about a competitor.

■ Disclosure of production secrets, trade secrets.

■ Consumer interception.

■ Misleading consumers about the quality of their product and the competitor's product, about the place of origin of the product.

■ Unscrupulous pricing.

■ Use of illegal labor.

■ Poaching a competitor's employees.

■ Withdrawal of a product from circulation before a price increase or for the purpose of a price increase.

■ Establishing the dependence of the supply of products on the receipt of other products or services marking your product with a competitor's trademark.

■ Reselling a competitor's product under your own trademark.

■ Selling your product with an advertisement featuring a competitor's product.

■ Reselling someone else's merchandise that has had competitors' trademarks removed.

■ Conducting business under a false name.

■ Actions by former employees that violate business secrets.

■ False claims about other people's goods and services.

■ False product description.

■ Silence about the essential properties of the product, the presence or absence of which is expected by consumers.

Purpose of unfair competition

■ Attracting consumer demand.

■ Eliminate a competitor.

■ Competitor's internal disorganization.

Causes of unfair competition

■ Lack of awareness consumers.

■ The presence of high transaction costs associated with obtaining information.

■ Unequal bargaining power between the buyer and seller of the product.

Mechanisms for protection against unfair competition

■ State information policy.

■ Society of consumers.

■ Institute for Business Self-Regulation: Code of Professional Ethics.

■ Joint private and public institutions.

■ Community councils.

■ Government prohibitions on fraud.

■ Measures to create conditions for the development of fair competition.

Legislation to prevent unfair competition

1. Countries where unfair competition is regulated on the basis of legislative norms:

■ general rule of fair and unfair competition:

Germany;

Switzerland;

■ list of individual actions related to unfair competition:

2. Countries where there are no special laws on unfair competition, there are only general rules of civil law:

Netherlands.

3. Countries where the prosecution of unfair competition is carried out on the basis of judicial precedents:

Australia;

Great Britain;

Ireland;

4. Countries where there is a general rule and special regulations on individual acts of unfair competition.

The concept and role of competition in product markets

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

Competition is defined by Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" as rivalry between economic entities, in which the independent actions of each of them exclude or limit the ability of each of them to unilaterally influence the general conditions for the circulation of goods on the corresponding commodity market(Clause 7, Article 4 of the LPC).

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

Competition arises if economic entities operate in a particular product market on the basis of the principle of rivalry and on the condition that each of them must single-handedly influence the general conditions of such a market.

Fair competition is the competitiveness of economic entities, in which equal conditions for the functioning of all, without exception, subjects of market relations and the balance of their interests are actually provided.

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

In order to establish the legal framework for the regulation of competitive relations and the suppression of unfair competition in commodity markets, a number of Laws have been adopted: Law of the RSFSR of March 22, 1991 N 948-1 "On Competition and Restriction of Monopolistic Activities in Commodity Markets", Federal Law of August 17, 1995 No. 147-FZ "On Natural Monopolies" and Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition".

Conditions for the emergence of competition in commodity markets:

1. presence in the market of a large number of sellers of goods. Competition, unlike monopoly, implies the existence of several interacting entities on the market, while a monopolized market, as a rule, is represented by only one entity;
2. freedom of choice of commercial activities of sellers of goods. Each of the sellers can enter into relations with those market entities and in the order and on such conditions as it seems to him most advantageous from a commercial point of view;
3. matching demand to supply. The seller must go with the goods to the markets that are provided consumer demand, and, conversely, buyers should have a choice of different products from different manufacturers. The shortage of goods limits the freedom of competition.

Functions of competition in the markets of goods:

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

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

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

3. Distribution function. Competition not only includes incentives for higher productivity, but also allows the distribution of income among the chain of sellers, intermediaries and buyers in wholesale markets involved in the process of moving a product from producers to final consumers. This corresponds to the principle of remuneration based on results that exists in competition.

Today, control over the state of the competitive environment in the markets is carried out on the basis of the Order of the Federal Antimonopoly Service of Russia dated April 28, 2010 N 220 "On Approval of the Procedure for Analyzing the State of Competition in the Commodity Market" (hereinafter - the Order of 2010). The modern procedure for analyzing and assessing the state of the competitive environment is new edition the previously valid Procedure for analyzing and assessing the state of the competitive environment in commodity markets, approved by Order of the FAS Russia of April 25, 2006 N 108, Order of the Ministry of Antimonopoly Policy of Russia of December 20, 1996 N 169, and methodological recommendations to determine the boundaries and volumes of commodity markets, approved by the Order of the SCAP of Russia dated October 26, 1993 N 112. As its positive features we can note the introduction of the stages of determining the characteristics of the commodity market, the organization of a more rigid structure analytical report, the introduction of a system of criteria that allow making unambiguous decisions on determining the boundaries of the commodity market; the categories of seller and buyer, potential seller and buyer, wholesale and retail markets, related markets and vertically integrated economic entities that are interchangeable in the production of goods have been clarified. In addition, the provisions of the new Procedure define the conditions that may be recognized as restricting competition, and also clarify what can be considered as positive effect from transactions in the socio-economic sphere.

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

1. in the structure of Russian state authorities there is no single body that would be responsible for the implementation of the entire range of measures aimed at creating and developing competition;
2. the functions of the FAS Russia do not include the formation and implementation of competition policy in terms of creating and developing competition;
3. normative legal acts in this regard do not contain specific measures for the development of competition and are more of a declarative nature;
4. in the area of ​​competition regulation, the focus is on safeguards.

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

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

Stimulating the development of competition in product markets

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

1) increase in the number of economic entities operating in this product market by:

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

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

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

Restriction of competition in product markets

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

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

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

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

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

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

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

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

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

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

2. Affiliates. The Law on Competition and Restriction of Monopoly Activities in Commodity Markets defines affiliates as individuals and legal entities capable of influencing the work of legal entities and (or) individuals engaged in entrepreneurial activities (Article 4 of the Law (Appendix N 12)). The concepts of "affiliated persons" and "group of persons" refer to each other as general to particular, since persons can be recognized as affiliated according to other criteria, and not only in connection with belonging to a group of persons. The concept of "affiliated person" is disclosed in the Law on Competition and Restriction of Monopoly Activities in Commodity Markets by enumerating its general characteristics and listing persons classified as affiliated. The common features of affiliated persons include: the composition of affiliated persons, the grounds for affiliation, the degree of dependence of some persons on others, and legal form this dependency.

A necessary sign of an affiliated person is the existence of a relationship of dependence between a legal or natural person and an affiliated person of this legal or natural person. This dependency can take place:

1. in case of ownership of a certain part of the authorized capital by a legal or natural person legal entity, which determines participation in the governing body with the right to vote;
2. in the case when an individual, by virtue of his position (for example, a member of the board of directors, CEO society), and a legal entity by virtue of its legal status(for example, an investment fund manager) have the right to issue instructions binding on the company and (or) have the ability to otherwise determine its actions;
3. in the case of certain family ties between individuals.

Affiliates of a legal entity are:

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

Affiliated persons of an individual engaged in entrepreneurial activity are:

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

2. State control over the activities of market entities

1. State control over economic concentration. In accordance with paragraph 21 of Art. 4 of the LLC, economic concentration refers to transactions, other actions, the implementation of which has an impact on the state of competition.

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

Granting the preliminary consent of the antimonopoly body to the creation and reorganization of commercial organizations (Article 27 of the Law and Procedure Code), which is carried out through:

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

Granting the preliminary consent of the antimonopoly body to transactions with shares, shares or property of commercial organizations, rights in relation to commercial organizations (Article 28 of the LLC).

Acceptance by the antimonopoly authority mandatory notifications on the commission of certain categories of transactions established by Art. 30 ZoZK.

The antimonopoly body exercises control over the activities of a group of persons in the area of ​​economic concentration when making transactions:

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

Article 31 of the LCA allows making transactions within a group of persons without obtaining the prior consent of the antimonopoly body, if the following conditions are present in the aggregate:

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

2. State control over agreements restricting competition between economic entities. According to paragraph 1 of Art. 35 LPA subjects trading markets who have the intention to reach an agreement that may be recognized as admissible in accordance with the LCA, may apply to the antimonopoly body with a statement on verification of the compliance of the draft agreement in writing requirements of the antimonopoly legislation by submitting documents and information to the antimonopoly authority in accordance with the List approved by the federal antimonopoly authority.

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

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

1. refusal to conclude contracts with certain sellers or buyers (customers) (clause 1, article 11 of the LLC).

The current amended competition law prohibits "vertical" agreements between business entities if:

1) such agreements lead or may lead to the fixing of the resale price of the goods, except for the case where the seller sets the maximum resale price of the goods for the buyer;

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

The exception is "vertical" agreements, which, in accordance with Art. 12 LCAs are recognized as admissible if they are:

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

2) "vertical" agreements between business entities (with the exception of "vertical" agreements between financial institutions), the share of each of which in any commodity market does not exceed 20%.

Agreements of economic entities that are participants in the wholesale and (or) retail electricity (capacity) markets, commercial infrastructure organizations, technological infrastructure organizations, grid organizations are also prohibited if such agreements lead to price manipulation in the wholesale and (or) retail electricity markets ( power).

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

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

Individuals, commercial and non-profit organizations are prohibited from coordinating the economic activities of economic entities if such coordination leads to any of the consequences specified in paragraphs 1 - 3 of Art. 11 ZZK. The provisions on the prohibition of "vertical" agreements do not apply to agreements between economic entities that are part of the same group of persons, if one of such economic entities has control over another economic entity or if such economic entities are controlled by one person, with the exception of agreements between economic entities entities carrying out activities, the simultaneous performance of which by one economic entity is not allowed in accordance with the legislation of the Russian Federation.

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

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

3. State control over the level of prices in the markets. An important function of the state control of the competitive environment in the markets of goods is the control of price levels for goods. This type of control is necessary to prevent the establishment in the markets of monopoly high and monopoly low prices. In accordance with Art. 6 LOC, a monopolistically high price of a product is a price set by a dominant economic entity, if this price exceeds the price that, under competitive conditions on a product market, is comparable in quantity sold for certain period of goods, the composition of buyers or sellers of goods and the conditions of access, are established by economic entities that are not included with buyers or sellers of goods in the same group of persons and do not occupy a dominant position in a comparable product market, and also if this price exceeds the amount necessary for the production and sale of such goods expenses and profits.

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

In accordance with the Procedure 2010, the Rules for monitoring the commodity market and conducting economic and statistical calculations are established, based on the results of which interchangeable goods are determined, which may include: ); 2) the "hypothetical monopolist test" procedure (clause 3.9 of the Order 2010); 3) calculation of the indicator of cross elasticity of demand (clause 3.10 of the Procedure 2010).

The "hypothetical monopolist test" is carried out to determine the product boundaries of the commodity market. When it is carried out, a significant and long-term increase in the price of the product under study is recognized as its increase by 5–10%, with other equal conditions competition that persists in the future throughout the time interval of the study. When assessing the price level, what matters is whether, as a result of a price increase, buyers will replace this product with other goods and whether there will be a decrease in sales that makes such a price increase or decrease unprofitable for sellers.

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

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

The register contains information about:

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

An economic entity has the right to independently send an application in any form to the antimonopoly body on the inclusion of information about itself in the register, as well as on the exclusion of the relevant information from the register and the introduction of changes to the information contained therein.

Decisions on including information about an economic entity in the register, deleting relevant information from the register, making changes to the information contained in the register are made by order of the antimonopoly body. The register is kept in in electronic format. The register is maintained by the officials of the antimonopoly authority, who have the appropriate authority, under conditions that ensure the prevention of unauthorized access to the register.

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

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

Measures prohibiting activities that may harm competition

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

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

2. Prohibition on restricting competition agreements between economic entities. Paragraph 1 of Art. 11 of the LLC recognizes a cartel and imperatively prohibits agreements between economic entities-competitors, i.e. between economic entities selling goods on the same commodity market, if such agreements lead or may lead to:

1. establishment or maintenance of prices (tariffs), discounts, allowances (surcharges) and (or) extra charges;
2. increase, decrease or maintenance of prices at the auction;
3. dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);
4. reduction or cessation of production of goods;
5. refusal to conclude contracts with certain sellers or buyers (customers).

Cartel prohibitions are unconditional and there are no exceptions. Any agreement containing the listed conditions, from the point of view of the law, is recognized as an offense and entails the application of measures of administrative and criminal liability. In addition, this article establishes prohibitions that provide for the existence of exceptions. For example, paragraph 2 of Art. 11 LLC prohibits "vertical" agreements between business entities, with the exception of "vertical" agreements, which are recognized as permissible in accordance with Art. 12 LCA if: 1) such agreements lead or may lead to fixing the resale price of the goods, unless the seller sets a maximum resale price for the buyer; 2) such agreements provide for the obligation of the buyer not to sell the goods of an economic entity that is a competitor of the seller. This prohibition also does not apply to agreements on the organization by the buyer of the sale of goods under a trademark or other means of individualization of the seller or manufacturer.

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

Prohibitions of concerted actions are limited by the condition of the market share occupied by economic entities performing such actions. In accordance with paragraph 5 of Art. 11.1 of the LLC, prohibitions on concerted actions do not apply to concerted actions of economic entities whose aggregate share on the commodity market does not exceed 20% and, at the same time, the share of each of which on the commodity market does not exceed 8%.

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

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

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

The listed actions by their nature represent counterfeit actions aimed at obtaining economic advantages in the competitive struggle. A counterfeit product is a product that is an unauthorized counterfeit. According to paragraph 4 of Art. 1252 of the Civil Code of the Russian Federation in the event that the manufacture, distribution or other use, as well as the import, transportation or storage of material media in which the result of intellectual activity or a means of individualization is expressed, leads to a violation of the exclusive right to such a result or to such a means, such material media are considered counterfeit. For the purposes of the CLCA, the consequences of counterfeiting are actual or potential losses caused to competitors, or actual or potential harm caused by their business reputation;

5) illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law. These actions are intended to deprive a competitor of the opportunity to obtain commercial benefits by disclosing information that he deliberately withheld. At the same time, it is very important that the concealment of information by a competitor is not an offense and does not violate the interests of other market participants and end users. The trade secret regime in Russian legislation is regulated by the norm of Ch. 75 "The right to a secret of production (know-how)" of the Civil Code of the Russian Federation, the Federal Law "On Commercial Secrets" and the Law of the Land Code. Under trade secret according to sub. 1 st. 3 of the Federal Law "On Commercial Secrets" refers to the regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits. By its legal nature, a trade secret is a special kind of prohibitive legal regime.

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

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

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

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

In Art. Art. Articles 15 and 16 of the LLC formulate prohibitions on restricting competition in the field of economic management. In this case, state and municipal formations are considered as potential subjects of law, which, due to their exclusive position of power and advantages, can act as deterrents to create a normal competitive environment. State and municipal formations can exert such influence on competition by: 1) adopting acts restricting competition; 2) committing acts or conscious inaction that may harm competition; 3) they conclude agreements that may restrict competition; 4) their concerted actions that have a negative impact on the competitive environment of the markets.

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

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

The law also prohibits vesting state and municipal authorities with additional powers, the exercise of which may lead to the prevention, restriction, and elimination of competition (clause 2, article 15 of the LLC). It is also forbidden for state and municipal formations to combine their functions with the functions of economic entities of the market (Clause 3, Article 15 of the LLC). Some types of agreements and concerted actions of state and municipalities and subjects of commodity markets can also lead to the prevention, restriction, elimination of competition. In this regard, Art. 16 of the LLC prohibits such agreements that contribute to: 1) raising, lowering or maintaining prices; 2) economically, technologically and otherwise unjustified establishment of different prices for the same product; 3) dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold, or the composition of sellers or buyers; 4) restriction of access to the commodity market, exit from the commodity market or elimination of economic entities from it.

M. Zalesskaya, lawyer at Law and Business Law Firm.

In the nineties of the XX century, many laws and by-laws were adopted in Russia on various areas activities proclaiming the need to combat unfair competition<*>. It can be stated that the phrase "unfair competition" itself has ceased to be unusual for the legislator (and is sometimes interpreted very broadly).<**>). Increasingly, there are also publications devoted to the problem of unfair competition. However, there is still no common understanding of what unfair competition is, what its consequences for society may be in one case or another, and how it can be more successfully protected from it.

<*>See, for example: Federal Laws "On Precious Metals and Precious Stones" (Article 13), "On State Regulation of the Production and Turnover of Ethyl Alcohol, Alcoholic and Alcohol-Containing Products" (Article 5), "On Participation in International Information Exchange" (Art. 4, 13), "On State Regulation of Foreign Trade" (Art. 29), etc.
<**>Thus, according to Article 3 (p. 2) of the Federal Law "On Science and State Scientific and Technical Policy", "bodies state power The Russian Federation, in accordance with this Law, guarantees the subjects of scientific and (or) scientific and technical activities protection from unfair competition" (highlighted by me. - M.Z.).

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

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

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

One of the industrial rights enshrined in the Paris Convention is the right to protection against unfair competition, which is considered "any act of competition that is contrary to honest practices in industrial and trade affairs"(Art. 10-bis).

At the same time, until the beginning of the 1990s, accession to the Convention did not entail any fundamental or significant changes in the current law, because the Paris Convention gives each of the participating countries complete freedom to legislate in this area in accordance with its legislative traditions and economic needs"<*>.

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

The rejection of the "command economy" methods in the early 1990s in the USSR necessitated the development of a set of laws and regulations aimed at promoting the development of effective competition and, in particular, at curbing unfair competition.<*>. However, this work was stopped due to the change in the socio-political situation and the collapse of the Soviet Union.

<*>See, in particular: Decree of the Council of Ministers of the USSR of 16.08.90 N 35 "On measures to demonopolize the national economy"; Fundamentals of Civil Legislation of the USSR and the Union Republics of May 31, 1991 (clause 3, article 5). At the same time, the Fundamentals provided that "measures to combat unfair competition are established by legislative acts" (clause 3, article 5).

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

So, on December 23, 1993, in order to determine the legal framework for the prevention, restriction and suppression of monopolistic activities and unfair competition of economic entities within the framework of the common economic space, the Treaty of the CIS countries "On the implementation of a coordinated antimonopoly policy" was concluded.<*>. Paragraph 3 of Article 3 of this Treaty contains a ban on unfair competition and provides an open list of possible forms of its implementation. Paragraph 4 of this article provides that "decisions, agreements or actions prohibited by this article shall be recognized as invalid and without legal force."

<*>Bulletin of international treaties. 1994. N 3. At present, the Agreement on the implementation of a coordinated antimonopoly policy of January 25, 2000 has entered into force.

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

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

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

The Agreement states that an important condition for strengthening economic ties between Russia and the Community is the approximation of laws. Russia strives to gradually achieve compatibility of its legislation with that of the Community. The requirements for the approximation of legislation apply, in particular, to competition rules, environmental protection, and consumer protection (art. 55).

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

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

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

Organizational and legal framework warnings, restrictions and suppressions of monopolistic activity and unfair competition in the commodity markets in the Russian Federation are defined in the Law of the RSFSR of March 22, 1991 N 948-1 "On competition and restriction of monopolistic activity in commodity markets"<*>(hereinafter referred to as the Law on Competition).

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

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

<*>This list was substantially amended by Federal Law No. 83-FZ of May 25, 1995 "On Amendments and Additions to the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets" in anticipation of the adoption of the Federal Law "On Advertising".

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

Provisions directly directed against unfair competition are also contained in Federal Law N 108-FZ "On Advertising" dated July 18, 1995.<*>

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

This is due to the fact that advertising legislation, one of its goals, which has protection from unfair competition (paragraph two of clause 1, article 1 of the Advertising Law), contains a number of clearly defined requirements for advertising. Violation of these requirements (for example, placement of advertising in violation of the requirements for the procedure and method of its placement, for the content of advertising, including the failure to provide part of the essential information that affects the choice of the consumer) leads to unreasonable competitive advantages in comparison with a bona fide business entity.

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

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

An important role is also played by the provisions of Art. 5 of the Civil Code of the Russian Federation, which attaches importance to the custom of business turnover and determines the conditions for its application, and Art. 6 of the Civil Code of the Russian Federation on the application of civil law by analogy. Of particular interest is paragraph 2 of Art. 6 of the Civil Code of the Russian Federation, which provides that the rights and obligations of the parties, if it is impossible to use the analogy of the law, are determined on the basis of the general principles and meaning of civil law (the analogy of law) and the requirements of good faith, reasonableness and justice.

Due to the fact that unfair competition is often carried out in the form of actions, although they do not directly violate the norms of the law, but seem to be faulty from the point of view of business practices, as well as the requirements of integrity, reasonableness and fairness, these articles may turn out to be extremely important in proving the fact unfair competition.

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

In this case, in case of non-compliance with the requirements provided for in clause 1 of this article, the court, arbitration or arbitration court may refuse to protect the person's right (clause 2, article 10 of the Civil Code of the Russian Federation). This rule can be extremely important if an unscrupulous competitor defends unfairly obtained business advantages in court or arbitration(in an arbitration court, "ad hoc" arbitration, in permanent commercial arbitration, etc.).

However, it seems that the main advantage of Art. 10 of the Civil Code of the Russian Federation in relation to the fight against unfair competition is to use it not to protect the violated right - the very concept of unfair competition, as contrary to the norms of integrity, reasonableness and fairness, already contains almost always applicable elements of the offense. The role of Art. 10 GK in defense, according to the apt expression of E. Markvart<*>, "the quality of competition", is important to prevent violations by establishing certain conditions for the exercise of civil rights by business entities.

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

The same role in counteracting unfair competition, obviously, can be played by another norm of paragraph 1 of Art. 10 of the Civil Code of the Russian Federation: "The use of civil rights for the purpose of restricting competition, as well as the abuse of a dominant position, is not allowed." This condition is able to provide a more objective and complete assessment by the economic entities themselves of the actions carried out by them in the course of competition.

However, direct use this rule to protect against unfair competition is far from indisputable.

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

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

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

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

<*>Totiev K. Suppression of unfair competition // Economics and Life. M.: Lawyer. 1999. N 23. S. 6.

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

At the same time, despite the fact that in this case unfair competition did not take place, the study and analysis of this and similar cases related to the application of Art. 10 of the Civil Code of the Russian Federation, can play a big role in the legal education of entrepreneurs and, in particular, in the introduction to business environment rules of good business conduct.

The issue of unfair competition is also addressed to some extent in the articles of part one of the Civil Code of the Russian Federation devoted to intellectual property, official and commercial secrets, intangible benefits and compensation for moral damage, etc., and in part two of the Civil Code of the Russian Federation - in chapter 54 "Commercial concession" and in chapter 59 "Liabilities in consequence of injury" (in particular in paragraph 4 "Compensation for non-pecuniary damage").

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

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

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

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

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

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

It should be noted that civil scientists, who have been dealing with the issue of exclusive rights to intellectual property objects for a long time, strongly oppose the inclusion of relations related to the illegal use of such rights among the forms of unfair competition, considering this as an "unreasonable expansion of the functions" of the antimonopoly authorities.

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

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

Protection against unfair competition is often associated with ensuring the reliable storage and proper use of information, especially of a confidential nature. In Art. 139 of the Civil Code of the Russian Federation legally defines the conditions for classifying information as a trade secret. According to this article, it constitutes a trade secret in the case “when information has actual or potential commercial value due to its unknownness to third parties, it is not freely accessible on a legal basis and the owner of the information takes measures to protect its confidentiality.

A trade secret as information of a confidential nature is protected by Decree of the President of the Russian Federation of March 6, 1997 N 188 "On Approval of the List of Confidential Information", which refers to confidential information, in particular, "information related to commercial activities, access to which is restricted in accordance with the Civil Code of the Russian Federation and federal laws (commercial secret)."

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

A more complete assessment of the nature of the competitive actions of producers and sellers of goods (works, services) for the population allows the Law of the RSFSR of February 7, 1992 "On the Protection of Consumer Rights"<*>(for example, in terms of fulfillment by the seller of the obligation to provide the necessary and reliable information that ensures the possibility of a competent choice of goods - Articles 8, 10 of the Law). It should be noted that in many countries consumer protection legislation is an integral part of the legislation on unfair competition.

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

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

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

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

Thus, a considerable part of modern Russian legislation is devoted to the legal regulation of relations related to unfair competition and related problems.

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

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

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

In the practice of the work of the antimonopoly authorities, there is an increase in the number of applications from business entities with statements about the suppression of the actions of unscrupulous competitors: from several dozen a year in the mid-90s to several hundred a year at the end of the decade. At the same time, the head of the MAP of Russia, I.A. Yuzhanov, in his article on the work of the Ministry and its territorial departments on the implementation of antimonopoly legislation, indicated that the number of statements about facts of unfair competition in 1999 slightly decreased compared to 1998<*>.

<*>Yuzhanov I. The practice of applying antimonopoly legislation // Russian justice. 2000. No. 5.

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

At the same time, at present, among the supposedly equal subjects, there are quite a few that are "more equal than all others" - i.e. having competitive advantages not only arising from more high level development, but also associated with additional tacit, informal opportunities for their leaders to resolve various problems<*>.

<*>See, for example: "In the shadow of a trading tent" // Delovaya Moskva today. 1996. N 31. S. 4.

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

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

At the same time, an inefficiently operating organization, thanks to personal contacts, can receive significant advantages for doing business, push out a domestic competitor, and after some time be absorbed by a competing foreign corporation in the course of moving to the Russian market.

This problem is very relevant, since the generally recognized principles business ethics are not always respected - a number of countries, in order to encourage the consolidation of their companies in new markets, legally allow for very peculiar methods of action for them.

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

It seems that there is no special need to explain that the case of unfairly gaining advantages in business over a competitor who does not have such “authorities” secured in this way, and the funds for their implementation in this case becomes more than a possibility - practically a reality.

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

Let's leave aside this type of unfair competition, effective protection against which, despite many years of fighting corruption, has not yet been developed. However, even in cases where unfair competition could be suppressed very effectively, appropriate action is often not taken. We will try to identify the main reasons for this.

One of the most common reasons - "reluctance to get involved" - is given by many business entities. The fact is that the capacity of the market for this or that product, the presence of unoccupied market niches allow the victims to forgive their unscrupulous competitors for the time being. However, it is obvious that the preservation of this situation is a matter of time.

In addition, one of the reasons is, unfortunately, the continuing lack of legal literacy of entrepreneurs. It is not uncommon for situations where the protection of a violated right is based on an approximate assessment by the head of the proposed ways of protection in the absence of a qualified legal analysis of the possible consequences of the development of one or another course of action. In this regard, a course of action approximately suitable for the scheme is chosen, which does not sufficiently take into account the existing judicial practice, the accepted approach of the judges.

Indeed, proving the fact of unfair competitive actions, and in particular the fact and amount of damages caused by such actions, can be somewhat more difficult than a direct indication of the fact of using someone else's trademark or a sign confusingly similar to it. This is due, in particular, to the insufficient development of private institutions for monitoring the state of various markets at present, the lack of experts with sufficient qualifications who could conduct serious studies of the extent to which the consumer market for the goods of the affected entity has narrowed with the release of products by an unscrupulous competitor, etc.

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

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

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

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

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

The inclusion in modern civil law of the condition for the protection of business reputation (Article 152 of the Civil Code of the Russian Federation) is very important for normal market relations developing in Russia, since, as the Plenum pointed out Supreme Court The Russian Federation in its Decree of April 25, 1995 N 6 "On the introduction of amendments and additions to certain resolutions of the Plenum of the Supreme Court of the Russian Federation", the business reputation of legal entities is one of the conditions for their successful activities.

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

However, the dissemination of negative information does not always have such a goal.

For example, in the practice of the antimonopoly authorities there were situations when one organization disseminated in various ways (independently and through nominees, in leaflets, orally, etc.) negative information about the activities of the management of another organization, distorted the results of the activities of its team. This was done in order to buy up the shares of the members of the injured organization.

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

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

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

The abolition of this requirement in the legislation of a number of countries has made it possible to provide a broader approach to the issue of defamation: not only competitors, but also consumer associations or the media may then be subject to unfair competition provisions if they disseminate information capable of discrediting a particular business entity.

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

Misleading consumers about the nature, method and place of manufacture, consumer properties, quality of goods.

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

Incorrect comparison by an economic entity of the goods it produces or sells with the goods of other economic entities.

In the earlier version of the analyzed norm of the Law on Competition, there was a clause on the commission of an incorrect comparison by an economic entity in the course of its advertising activities. The aforementioned Federal Law of May 25, 1995 "On Amendments and Additions to the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets" to this norm on the eve of the adoption of the Law "On Advertising", which was supposed to regulate specific issues of unfair advertising activities , was given over general character. However, the newly adopted Law on Advertising significantly expanded the list of types of unfair competition in the field of advertising, and comparative advertising (para. 3, article 6) became just one of the types of improper advertising.

Often an incorrect comparison is used in order to appropriate the reputation of a successful competitor. In this case, unfair competition takes place already at the very statement: "My product is as good as". If it turns out that, for example, a game console - an analogue of a well-known product - is of poorer quality, one can also speak of unfair competition in the form of misleading the consumer.

Another case of incorrect comparison is interesting and ambiguous - if a firm whose products differ higher quality and safety, indicates the worst quality and safety characteristics of competitors' products. This can be detrimental to competitors, although crowding out a lower quality product is beneficial to the consumer. However, achieving a dominant position in the industry by an advanced firm in this way can lead to ambiguous consequences. In the conditions of the Russian underdeveloped market, the dominance of a large foreign firm with advanced technology can lead to the decline of the domestic industry. The dominant position, moreover, sometimes leads to stagnation and a decrease in interest in the requirements of consumers, deterioration pricing policy slowing down innovation. Small producers who could introduce to the market a new, more profitable consumer properties products, high entry barriers to it.

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

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

At present, it is this form of unfair competition that is most widespread, and protection against such actions with the help of legislation on the suppression of unfair competition causes a very negative reaction from experts in the field of intellectual property.

Since the goals of producers and consumers do not coincide in everything, the sale of goods that is unprofitable for a conscientious economic entity is sometimes desirable and even beneficial for the consumer (if, for example, it is a high-quality and cheaper pirated copy computer program, film on video cassette, clothes with trademarks of large Western companies of production (if they do not have the appropriate rights on the basis of a franchise) of Eastern European countries).

It should be noted that protection against various unfair methods of competition, for example, through the illegal use of means of individualization of an economic entity (company name, commercial designation) or its product (trademark, trademark, logo, etc.) in some cases could be carried out much more effectively using unfair competition rules than traditional intellectual property law.

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

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

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

It has long been the secrets of production, allowing you to create more quality goods, to attract more consumers, kept professionals in their craft - doctors, winemakers, blacksmiths, barbers, masons, etc.

However, the protection of one's secrets by a professional invariably encounters attempts to overcome this protection, and at the expense of other people's experience, work, and brains, gain unreasonable competitive advantages.

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

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

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

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

However, in socialist Russia of the 20th century, the opinion prevailed that secrets between enterprises were completely useless (of course, unless these secrets were raised to the rank of state secrets). As Professor Dozortsev writes, "any person who had an achievement had to transfer it free of charge to the public, and his duty to transfer free of charge all data on the achievement upon request person concerned was generally unconditional ... The category "secret of production" was not recognized by law. Accordingly, there could be no question of its market circulation"<*>.

<*>There. pp. 45 - 46.

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

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

Unscrupulous competitors often try to obtain hidden information using various kinds industrial espionage. In modern Russian legislation, unlike the legislation of most industrialized countries, there is no definition of industrial espionage<*>, and responsibility for its implementation is not provided.

<*>Bashkin V. Secret of the firm. Service. 1995. No. 20; Solovyov E. Commercial secret and its protection. M.: Glavbukh, 1995. S. 6.

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

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

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

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

Awareness of the importance of this problem gradually came to government agencies, and it is not by chance that it was reflected in the Concepts of National and Information Security of Russia.

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

In particular, various obstacles that a competitor creates for his rival (disorganization of production, luring workers, computer viruses in programs, etc.) can turn out to be unfair competition. The identification and disclosure of forms of unfair competition by the federal antimonopoly body in special publications, as well as by the courts when summarizing the relevant category of cases, would significantly contribute to the development of various measures and methods to counteract unfair competition, both legal and otherwise.

In this regard, we can conclude that the problems of unfair competition are for the most part very, very ambiguous - different phenomena and examples often change their polarity from positive to negative and vice versa. In fact, there is always a possible situation where a seemingly very fair and highly beneficial decision turns out to be unjust and causing great harm. It is in this connection that it seems necessary to address Special attention on the ethical side of doing business and on the ethical component of state regulation and management.

It should be noted that, in essence, enshrining forms of unfair competition in the Competition Law is a double-edged weapon and can be used both to protect a bona fide competitor and to attack an unfair one. At the same time, various competitive methods prohibited by the legislator as one form or another of unfair competition can be applied simultaneously or alternately.

Among the ways to protect against unfair competition are administrative, civil and criminal law.

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

When choosing a method of protection against unfair competitive actions, it is desirable for an economic entity to carefully analyze (independently or with the involvement of specialists) for what purpose and how certain actions are carried out, whether it is possible to apply measures of administrative restraint or should go to court, etc.

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

The implementation of the protection of the rights of economic entities from unfair competition in the MAP of Russia is carried out in accordance with the Rules for Considering Cases on Violations of Antimonopoly Legislation, approved by Order of the MAP of Russia dated July 25, 1996 N 91<*>.

<*>Bulletin of normative acts of the federal organs of executive power. 1996. No. 4.

An economic entity, having filed an application for the suppression of unfair actions of its competitor, has the right to expect, in the event that an appropriate decision is made by the antimonopoly body, the issuance of an order to stop such actions.

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

give economic entities binding instructions to stop violations of the antimonopoly law and (or) to eliminate their consequences, to restore the original position, transfer to the budget profits received as a result of violation of the antimonopoly law;

make decisions on the imposition of fines on commercial and non-profit organizations and administrative penalties on their leaders, citizens, including individual entrepreneurs for violations of antitrust laws;

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

send to the appropriate law enforcement materials for resolving the issue of initiating a criminal case on the grounds of crimes related to violation of antimonopoly legislation.

Article 22 of the Law on Competition establishes the obligation to comply with the instructions of the federal antimonopoly authority.

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

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

At present, the Ministry for Antimonopoly Policy and Entrepreneurship Support has prepared additions and amendments to the Law on Competition, including in relation to liability for its violation.

Specialists of the antimonopoly authorities have repeatedly criticized the principle that the liability of economic entities and the amount of penalties in Russia do not depend on the entire period of illegal actions, but are calculated from the moment they are detected by the antimonopoly authorities and the issuance of orders, which can lead to abuse by both the antimonopoly authorities and and from business entities. More than once it was also proposed to establish liability not for non-execution of decisions and instructions of antimonopoly authorities, but for illegal actions of economic entities.

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

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

In this regard, obviously, it would be much more productive not the existing ambiguous relationship between Rospatent and the MAP of Russia to each other's actions, but their mutual cooperation. Taking into account the effectively developing network of territorial bodies of the Ministry of Antimonopoly Policy of Russia and the knowledge of employees of Rospatent, RAO, etc. in the field of intellectual property law, this cooperation would largely eliminate Negative consequences infringements in the field of intellectual property rights and provide more effective protection against unfair competition.

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

Measures of criminal liability in the Law on Competition and the Criminal Code of the Russian Federation are formulated ambiguously. In accordance with paragraph 4 of Art. 24 of the Law on Competition, heads of commercial and non-profit organizations, as well as officials of executive authorities of various levels and bodies local government who are guilty of repeated failure during the year to comply with the instructions of the federal antimonopoly body on time ( territorial authority) or obstructing the performance by employees of these bodies of their duties, bear criminal liability in accordance with applicable law.

Article 175.1 "Violation of antimonopoly legislation" was introduced into the former Criminal Code of the RSFSR by the Law of the Russian Federation of March 13, 1992 N 2509-1 (as amended by the Law of the Russian Federation of October 20, 1992 N 3692-1)<*>. This article establishes responsibility for "failure to comply in time with the lawful instructions of the Antimonopoly Committee of the Russian Federation, its territorial administration if it is committed by a person who during the year was subjected to administrative penalty for the same actions.

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

It should be noted that the legislator does not allocate in section VI of the Law on Competition "Responsibility for Violation of Antimonopoly Legislation" special measures of liability for unfair competition. Therefore, until January 1997, economic entities that repeatedly suffered during the year from unscrupulous competitors (the heads of which were subject to administrative penalties for failure to comply, for example, with the order of the antimonopoly authority to stop unfair competitive actions), theoretically had the opportunity to apply for criminal legal protection.

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

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

Unfair competition may also be "illegal use of someone else's trademark, service mark, appellation of origin or similar designations for homogeneous goods" (Part 1 of Article 180 of the Criminal Code of the Russian Federation), as well as the illegal use of warning labels in relation to unregistered RF trademark or appellation of origin.

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

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

Also, unreasonable competitive advantages can be obtained by an infringer of inventive and patent rights by illegally using an invention, utility model or industrial design, disclosing without the consent of the author or applicant the essence of the invention, utility model or industrial design before the official publication of information about them, attributing authorship or forcing co-authorship ( article 147 of the Criminal Code of the Russian Federation).

Unfair competition can also be carried out when illegally obtaining and disclosing information constituting a commercial or banking secret, by stealing documents, bribery or threats, as well as in any other illegal way for the purpose of disclosing or illegally using this information, as well as illegally disclosing or using information constituting a commercial or bank secrecy, without the consent of their owner, committed out of selfish or other personal interest (Article 183 of the Criminal Code of the Russian Federation).

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

First of all, this preventive measures. Depending on the type of activity of an economic entity, they may vary. Some publishing and bookselling firms, for example, make "black lists" of unscrupulous contractors. The banking community is doing the same.

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

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

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

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

Sometimes it is advisable to use the services of detectives.

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

The versatility of private detective and security activities, however, allows you to use the services of "advising and preparing recommendations for clients on issues of lawful protection against unlawful encroachments" for a variety of, and not always bona fide, purposes.

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

Based on the above, a number of conclusions can be drawn.

First, the concept of unfair competition currently formulated in the legislation seems to contain a large number of qualifying features that make it heavier and make it difficult to apply in practice. It would suffice to formulate this concept as "the behavior of a competing economic entity (action or inaction) that is contrary to the requirements of integrity, reasonableness and fairness in the conduct of entrepreneurial activities and leads to obtaining unreasonable competitive advantages."

Secondly, it is desirable to carefully study the conditions under which liability arises for the commission of unfair competitive actions, and the development integrated system measures of responsibility for these violations in the independent Law on Unfair Competition.

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

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

Fourthly, it is necessary to openly discuss the problems of integrity in business and generalize the practice of suppressing unfair competition - both by the federal antimonopoly body and by the judiciary, chambers of commerce and industry, etc.

It seems that the combination of state control and control of the economic entities themselves over the fair implementation of competition in general in the course of entrepreneurial activity could also turn out to be very effective.

), which

1. focused on gaining benefits when carrying out business activities,
2. contrary to the law Russian Federation, business practices, requirements of integrity, reasonableness and fairness and
3. have caused or may cause damage other economic entities-competitors have either suffered or may inflict damage to their business reputation(Article 4 of the Federal Law "On protection of competition").

She represents one form of abuse, expressed in the illegal behavior of the subject of market relations, which, through forms of exercising its subjective right that are not permitted by law or contrary to business practices, creates obstacles in the exercise by its competitors of their business rights and/or harm consumers.

The definition of unfair competition lacks the figure of the consumer. If the damage is caused to them, their rights are protected by consumer legislation.

The good faith of an economic entity is manifested primarily in its lawful behavior, however current legislation does not contain a clear distinction between bad faith and wrongfulness.

More

Unfair competition is one of the types of antitrust violations, one of options illegal actions. Unlike agreements, conspiracies, abuses of a dominant position, it has an essential feature: it takes into account not only the violation of the law, but, above all, moral norms - norms of integrity, reasonableness, justice, as well as business customs.

At the same time, in the domestic literature, unfair competition is quite often considered as an offense.

Unfair competition- this is an offense that is committed by an economic entity and encroaches on relations in the field of exercising freedom of economic activity and exercising fair competition.

The objective side of unfair competition:

• illegal behavior of an economic entity that violates legally established prohibitions, business practices, requirements of integrity, reasonableness and fairness.

Socio-economic harm is an obvious sign of such an offense, since unfair competition undermines good, fair business practices and directly impedes the openness (transparency) of commodity and financial markets.

The subjective side of unfair competition:

• , since it is specifically aimed at acquiring unjustified advantages in entrepreneurial activity.

Thus, unfair competition is an offense.

However, the question of whether unfair competition can be considered as an offense, and if so, in what cases, and, accordingly, whether it is appropriate to consider its features through the prism of the offense, has not yet been raised.

Protection against unfair competition was recognized as an integral part of the protection of industrial property at the very beginning of the last century. In 1990, provisions relating to protection against unfair competition were included in the Paris Convention for the Protection of Industrial Property. An act of unfair competition is considered to be any act of competition that is contrary to fair customs in industrial and commercial affairs (clause 2, article 10-bis of the Paris Convention).

In the middle of the last century, the Convention establishing the World Intellectual Property Organization included protection against unfair competition in the list of rights constituting intellectual property. And although the legitimacy of attributing protection against unfair competition to objects of industrial property and intellectual property, respectively, is often questioned, the mentioned facts testify to the long-standing recognition by the world community of the need to establish rules for conducting competition.

Signs of unfair competition:

1. unlike monopolistic activity, it can be carried out only by actions, the possibility of passive behavior (inaction) is not provided;
2. these actions will be considered as offenses if they contradict not only the provisions of the current legislation, but also the customs of business, the requirements of integrity, reasonableness, and fairness;
3. the purpose of active actions of subjects of unfair competition is to acquire advantages in entrepreneurial activity;
4. as a result of actions, losses may be caused to competitors or damage to their business reputation (moreover, only the potential threat of causing losses or damage to business reputation is sufficient to qualify this offense as unfair competition).

Ch. 2.1 Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition" identifies the following forms of unfair competition by:

1. discredit, that is, dissemination, inaccurate or distorted information that may cause losses to an economic entity and (or) damage its business reputation;
2. misleading;
3. incorrect comparison an economic entity and (or) its goods with another economic entity-competitor and (or) its goods;
4. acquisition and use of the exclusive right for means of individualization of a legal entity, means of individualization of goods, works or services;
5. use of the results of intellectual activity;
6. creating confusion;
7. obtaining, using, disclosing information constituting a commercial or other legally protected secret;
8. other forms of unfair competition.

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