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32UDC: 339.137 (042)(575.1)
Tadjibayeva Mahsuda
Lecturer of Business Law Department, Tashkent State University of Law E-mail: mtadjibayeva@gmail.com
DISCREDITING AS ONE OF THE SIGNS OF UNFAIR
COMPETITION
Ab&ract. Everyone knows that the market economy is being improved through fair and healthy competition. However, today's economy displays various types of unfair competition, which has a negative impact on market relations. In practice, quite often, there is such a form of unfair competition as to discredit in relation to competitors. It should be noted that the current legislation of the Republic of Uzbekistan provides a very general definition of the concept of unfair competition, while the current practice requires a clear and precise explanation of the methods described in this definition. In other words, the mechanism and nature of actions - discreditation, which can cause damage or loss of business reputation - are not specified. This article provides an expanded definition of «discrediting» as a prohibited form of unfair competition under the Law of the Republic of Uzbekistan «On Competition», based on international norms and legislative bases of foreign countries. The article, based on an analysis of the legislation of the Republic of Uzbekistan, the legal norms of foreign countries and scientific literature, reveals the peculiarities of damage to business reputation by disseminating false, inaccurate and distorted information about a competitor.
Keywords: unfair competition, discrediting, dissemination of false, inaccurate or distorted information, business reputation of a business entity.
Introduction
The concept of unfair competition under the Law of the Republic of Uzbeki&an "On competition" means the following: actions of an economic entity or a group of persons aimed at acquiring advantages in carrying out economic activities that are contrary to legislation, business cu^oms and cause or may cause losses to other economic entities (competitors)
or cause or may damage their business reputation [1]
In this regard, it can be said that the current legislation envisages the following four criteria for unfair competition: special privileges in doing business, committing acts contrary to the law and business ethics, harming and discrediting other business competitors.
The word "discredit" in French means "loss of tru&," and it is a deliberate act aimed at undermining
the reputation, authority and tru& of a business entity [2].
Main Body
In Article 14, the Law of the Republic of Uzbeki&an "On Competition" cites unfair competition as incorrect comparisons that could cause losses to another business entity or damage its business reputation.
In this case, an incorrect comparison is the comparison of the goods of an economic entity with other goods of another economic entity (competitor) by using words or designations that give the impression of the superiority of the goods without specifying characteri&ics or comparison parameters that have objective confirmation, or when ^atements containing these words or designations are false, inaccurate or di&orted.
From the above provision, it is underwood that an unfair competitor should be regarded as unfair competition when his or her comparative information is inaccurate, thereby damaging another competitor and undermining his business reputation. Also, in the second part of the norm, the words or symbols indicated in the information mu^ be false, inaccurate and di&orted to be considered a misleading comparison.
Hence, discrediting a competitor's business reputation through false, ambiguous and di&orted confirmation - the case of discredit is considered unfair competition.
In current practice, discretion is often seen in competitors' relationships as a sign of unfair competition. However, the current legislation of the Republic of Uzbeki&an provides a very general definition of the concept of unfair competition and now requires a clear and under&andable explanation of the methods specified in this definition.
That is, there is no indication of the mechanism and character of discretion, which can undermine competitors' business reputation. In this regard, we try to &udy this sign of unfair competition in the light of international norms and legislation of foreign countries.
In competition law theory, the term "competitor discretion" is used extensively. Concurrent discreditation - di&ribution ofknowingly false, inaccurate or di&orted information in a printed or otherwise duplicated text or in the mass media in order to damage the business reputation of a business entity [3].
Discrediting (or disparagement) is usually defined as any false allegation concerning a competitor that is likely to harm his commercial goodwill, like misleading, discrediting tries to entice cu&omers with incorrect information. Unlike misleading, however, this is not done by false or deceptive ^atements about one's own product, but rather by casing untruthful aspersions on a competitor, his products or his services. Discrediting, therefore, always involves a direct attack on a particular businessman or a particular category of businessmen, but its consequences go beyond that aim: since the information on the competitor or his products is incorrect, the consumer is liable to suffer also [4].
Issues of discredit were also regulated in the Paris Convention "On the protection of indu&rial property", adopted in 1883. This convention is considered one of the international agreements in the regulation of
economic spheres, and it covers issues of patents, trademarks, indu&rial designs, utility models, service marks, trade names, geographical indications and repression of unfair competition.
According to Paris Convention, an act of unfair competition is any act of competition that is contrary to hone& cu^oms in indu&rial and commercial affairs. In particular, the following shall be prohibited: all actions that may in any way cause confusion with respect to the enterprise, products or indu&rial or commercial activities of a competitor; false ^atements in the course of business that could discredit a competitor, product or indu&rial or commercial activity; indications or ^atements, the use of which in carrying out commercial activities may mislead the public regarding the nature, method of manufacture, properties, suitability for use or quantity of goods [5].
The Convention prohibits disqualification as a sign of unfair competition, that is, providing false information that could discredit a product, indu&ry or commercial activity.
The Federal Law of the Russian Federation "On Competition Protection" dated January 5, 2016, has a broader definition of the concept of unfair competition.
This norm specifies that unfair competition should be avoided through discretion, such as dissemination of incorrect, inaccurate or di&orted information that could harm the business entity and (or) damage its business reputation through discretion [6]. It also points out that in the following relationships, unfair competition through discretion should be avoided:
1) quality and consumer properties of goods offered for sale by other competing business entities, the purpose of such goods, methods and conditions of their production or use, results expected from the use of such goods, their suitability for certain purposes;
2) quantity of goods offered for sale by other business entities-competitors, availability of such goods at the market, the possibility of their purchase under certain conditions, the actual demand for such goods;
3) conditions under which goods are offered for sale by other business entities-competitors, in particular, the price of goods [6].
The Law ofthe Republic ofGermany "On Fighting Unfair Competition" of March 3, 2010 (Gesetz gegen den unlauteren Wettbewerb, UWG) is aimed at enhancing consumer protection, limiting unfair
competition, and providing greater transparency of the rules for people who do not have a legal education, business. It was adopted to give freedom to Section 7 of the Law &ates that disqualification and insult of a person with his or her competitor's di&inctive features, goods, services, activities or personal or business circum&ances are considered unfair competition., adopted to give freedom for business.
In Chapter 7 of Section 3 of the Law, discredits or denigrates the di&inguishing marks, goods, services, activities, or personal or business circum&ances of a competitor are considered unfair competition [7] . The United States Act of July 5, 1946, the Lanham Act, is a Federal Law regulating competition relations, which includes trademark infringement, trademark dilution, and false advertising. Chapter 43 of law is named False designations of origin, false descriptions, and dilution forbidden. According to the chapter:
1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or cause mi&ake, or deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteri&ics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act [7].
In order to e&ablish a &ate of discredit as a dishone^ competition, the following conditions muâ exi&:
- The action should have the appearance of di&ributing information;
- Information should be vague, false;
- Information should be broken
- Damage to the commercial activities of the competitor by causing unpleasant consequences
When we say "dissemination of information", any behavior that causes it to become known to third parties is underwood. In this case, the form of information dissemination does not matter.
Information can be in the form of public speech, in the form of public speech in the media, in the form of interviews or in the form of letters in business work. Norms again& the dissemination of inaccurate information are widely expressed in our national legislation. According to Article 100 of the Civil Code of the Republic of Uzbeki&an, a citizen has the right to demand a refutation by a court if the person who has disseminated such information cannot prove that they are right to the truth on the basis of information that violates his honor, dignity or business reputation.
It is underwood that such information will be disclosed to the general public, more than one or at lea& to a single person, as disseminating information that would undermine the case. Reporting can be carried out in public or private, in a written or oral form, with the use of mass media, as well as in a pictorial way (photo, photomontage) [8].
Also, Article 6 of the law "On mass media" of the Republic of Uzbeki&an prohibits the insult of honor and dignity of citizens or the business reputation, interference in their personal lives through mass media.
According to Paragraph 8 of Article 5 of the Supreme Court Plenum of the Republic of Uzbeki&an dated 19.12.1992 "On the application of laws on the protection of honor, dignity and business reputation of citizens and organizations in judicial practice" dissemination of information that denigrates the honour, dignity and business reputation of a legal entity or individual should be underwood as publication in the mass media, presentation in official records, public speeches, ^atements addressed to officials or other communication, including orally to several persons or at lea& one person.
However, in the law of the Republic of Uzbeki&an "on competition," it is not clear whether the dissemination of false information, that is, how the information will be disseminated. In other norms that regulate this situation, this issue is approached in a narrow circle.
Information di&ributed as a mechanism of dissemination of data can be provided through a printed method, audio or video recordings, radio or television programs, cinematography, speech and application and telecommunication sets of information [9, page 31].
It is also necessary that in order to find out the information as discredit, its character should
have an evaluation character, which is called false, ambiguous and di&orted as false information is underwood intentionally di&orted information that does not correspond to the truth in whole or in part. As for ambiguous information, it is underwood that information that partially does not correspond to reality but corresponds to the thoughts of the person who di&ributed it. As di&orted information, it is underwood that information that is actually completely wrong, but that corresponds to the concepts of the person who di&ributes them [9, p. 33].
From this, it is possible to conclude that there mu^ be a breach of the information and the intent to cause harm for the occurrence of the discredit.
Dissemination of information by a competitor that reduces the level of tru& in a business entity, but is reliable, is not unfair competition [10].
In the case of discretion, the subject matter is controversial, and some people argue that the subject only refers to competitors, while others argue that any individual may create discretion.
According to the national legislation, article 13 of the Law of the Republic of Uzbeki&an "On Competition", an incorrect comparison is the comparison of the goods of an economic entity with other goods of another economic entity (competitor) by using words or designations that give the impression of superiority of the goods without specifying characteri&ics or comparison parameters that have objective confirmation, or when ^atements containing these words or designations are false, inaccurate or di&orted.
Thus, the law provides that both parties should be business entities - competing in the event of disqualification through false, inaccurate or di&orted information as a sign of unfair competition.
Also, according to some We&ern experts, even a person who "attacks" through discredit is considered to be an opponent. Mo& &ates protect the law on unfair competition from disproportionality in cases where there is at lea& some kind of competitive relationship between the plaintiff and the respondent.
In some countries, however, the requirement of a competitive relationship has been totally abandoned, and this has led to a considerably broader concept of discrediting: not only competitors but also consumer associations or the media can be held liable under unfair competition law if they make derogatory
^atements about an individual businessman [4].
Thus, it is clear that not only the competitor but also other individuals can create a discretionary situation and thereby allow unfair competition. In this regard, the other party is the supporter of one party competing in the conduct of actions that may damage the business reputation.
Foreign legislation and the theory and practice of foreign competition law extend the scope of discretion entities as unfair competition to the national legislation.
The following may be mentioned as the object of discretion:
- The object of discredit is the goods themselves (their quality, consumer properties, purpose, methods and conditions of manufacture or application, results, expected from use, suitability for certain purposes);
- &ate of the goods market on which the goods are sold (quantity of goods offered to sale, availability of goods at the market, possibility to purchase them under certain conditions, the actual size of demand for such goods); sales conditions
- goods (price and other) [10].
Indeed, if discretion is carried out with respect to the competitor's goods, namely the market of the commodity market in which the product is sold and the terms of the sale, this may be regarded as unfair competition.
According to article 192 of the Criminal Code of the Republic of Uzbeki&an, discrediting a competitor, that is, disseminating knowingly false, inaccurate or di&orted information in a printed or otherwise multiplied text or in the media with the aim of harming the business reputation of an economic entity, is punishable by a fine from fifty to one hundred basic calculation values or by obligatory community service up to three hundred and sixty hours or correctional labor up to three years.
From the foregoing, it can be said that in the case of discretion as a sign of unfair competition, there mu^ be a purpose to undermine the reputation of the entrepreneur, his product or service. Also, the discretionary information mu^ not represent the true nature of the competitor's activities and mu& have the characteri&ics of di&ortion. Thus, the discretionary &atus mu^ seriously harm the activities of the business entity, which is discredited by the competitors and those who support them.
References
1. Law of the Republic of Uzbeki&an on Competition. January 6, 2012, No. 319.
2. Rayzberg B.A. Sovremenny ekonomicheski slovar [Modern Economic Dictionary]. M.: INFRA -M, 2017. p. 108.
3. Suharev A.Ya., Krutskiy V.E. Bolshoy yuridicheski slovar [Big Law Dictionary]. M.: INFRA -M, 2003, p. 78.
4. WIPO Intellectual Property Handbook: Policy, Law and Use. WIPO publication, WIPO, 2004, page 148.
5. Paris Convention for the Protection of Indu&rial Property (revised September 28, 1979, Official translation). Available at: https://wipolex.wipo.int/ru/text/379398
6. Federal Law of 26.07.2006 N 135-FZ (as amended on 27.12.2019) "On Protection of Competition". Available at: http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=LAW&n=342023&fld=134&d&=7 53,0&rnd=0.6920216187748132#014001142718921034
7. The new German Act Again& unfair competition. Available at: https://germanlawarchive.iuscomp. org/?p=822
8. Commentary to the Civil Code of the Republic of Uzbeki&an. Available at: https://www.osce.org/uz/ uzbeki^an/106236
9. Gorodov O.A. Pryamaya diskreditaciya konkurenta kak vid nedobrosovetnoy konkurenciya [Direct discrediting of a competitor as a form of unfair competition]. Pravila konkurenciya, 2010/1, (19). p 31 (in Russ.).
10. Tatyana P. Diskreditaciya kak in&rument v konkurentnoy borbe [Discrediting as a tool in competition]. Novaya buhgalteriya, 2017, no. 08.
