Unfair Competition Prevention Act Article 2, Paragraph 1, Item 21: Disparagement of a Competitor's Business
This item defines unfair competition as an act where a person in a competitive relationship attempts to gain an advantage over other competitors by notifying them of false facts that are contrary to objective truth. The provisions of this item were established to comply with Article 10bis, Paragraph 3, Item 2 of the Paris Convention in Japan.
A competitive relationship is a prerequisite for this item. A competitive relationship is determined to exist if there is a commonality in the customers or the like for both parties' businesses.
Furthermore, it is necessary that the "other person" whose reputation is harmed by the notification or the like be identified. In other words, if a specific industry itself is criticized, it does not fall under this item. On the other hand, even if the name is withheld, if that "other person" can be identified, it falls under this item.
Additionally, it is necessary that a false fact has been notified. A false fact is a fact that is contrary to objective truth. In this item, who conceived of this false fact is not a requirement. Therefore, if one notifies others of a false fact heard from someone else, the requirements of this item are met.
As a specific example, the act of announcing the fact of filing a lawsuit regarding patent infringement or the like on one's own website does not fall under this item. However, one should avoid actively notifying the other party's business partners of the fact of this lawsuit. In principle, filing a lawsuit is considered an exercise of the right to access the courts and is not illegal. However, depending on the method of notification and the content of the notification, it may potentially carry illegality as a "notification of false facts." In particular, I believe that one should refrain from sending "documents notifying of the possibility of patent infringement" to the business partners of a company suspected of patent infringement.
As another specific example, it is said that there was a case (facts unverified) where a restaurant (perpetrator) that had fewer customers due to the influence of the coronavirus spread false information to obstruct the business of another restaurant (victim). In this case, the perpetrator and the victim seemed to be operating relatively close to each other. Therefore, they might have thought that if the victim had fewer customers, the perpetrator would have more. Such a case is a typical example of business disparagement (reputation damage) stipulated in Article 2, Paragraph 1, Item 21 of the Unfair Competition Prevention Act. Looking at it from another perspective, it also seems to fall under obstruction of business by force (Article 234 of the Penal Code) and obstruction of business by fraudulent means (Article 233 of the Penal Code), so if one were to be arrested, it seems more likely to be for these.
・Unfair Competition Prevention Act Article 2, Paragraph 1, Item 21
(Definition)
Article 2: In this Act, "unfair competition" means the following:
Item 21: The act of notifying or spreading false facts that harm the business reputation of another person in a competitive relationship
・Paris Convention Article 10bis: Prohibition of Unfair Competition
(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.
(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
(3) The following in particular shall be prohibited:
1. All acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;
2. False allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
3. Indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.
・Penal Code Articles 233 and 234
Chapter 35: Crimes Against Reputation and Business
(Damage to Reputation and Obstruction of Business)
Article 233: A person who damages the reputation of another or obstructs their business by spreading false rumors or by using fraudulent means shall be punished by imprisonment with work for not more than three years or a fine of not more than 500,000 yen.
(Obstruction of Business by Force)
Article 234: A person who obstructs the business of another by using force shall be dealt with in the same manner as in the preceding Article.
●Past Articles
・Unfair Competition Prevention Act Article 2, Paragraph 1, Item 21: Disparagement of a Competitor's Business
・Unfair Competition Prevention Act Article 2, Paragraph 1, Item 21: Disparagement of a Competitor's Business
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