Type Research Of Commercial Slander

According to Article 14 of China’s “Anti-Unfair Competition Law”,which stipulates “An commercial subject shall not utter or disseminate falsehoods to damage competitors’ business reputation or products’ reputation. So all along in our country’s judicial practice, falsehoods is the only way to constitute commercial slander. In other words, no falsehoods would be no commercial slander.But recently, in the case of Tencent v. Qihoo’s unfair competition the Supreme People’s Court has re-defined the standard of commercial slander. The essential elements is whether the commercial subjects’ behavior would mislead the consumers and then do harm to the competitor’s business reputation or the reputation of his goods. In the case of one-sided presentation of facts which do harm to the competitor’s business reputation, because of its one-sidedness and inaccuracy, is sufficient to cause the relevant consumer to make misconceptions with related products. Thereby it will affect consumer’s decision and then do harm to the competitor’s business reputation. Chinese scholars generally recognized spreading improper argument based on objective facts may constitute commercial slander.In judicial practice, the constitution of business slander is lack of uniform standards. Whereby, the first part will focus on the constituent elements of commercial slander. By combing the judicial instance, I found that the courts all over the country focus on four major concerns when identifying commercial slander, they were “ competition relationships ”, “falsehoods”,“subjective fault”and“harmful consequence ”.In the perspective of competition, defining the commercial slander should not be limited only to commercial subjects which have a direct relationship between competition, the possibility of commercial slander also exists between generalized competition. In the perspective of, defining falsehood is only one case of commercial slander. In the perspective of subjective fault and harmful consequence, clarify the liability between damages and infringement. I believe that business slander should have four constituent elements:(1)subjects—business subjects with generalized competition relationship is satisfied;(2)behaviors—exist slander behavior;(3) consequence—cause damage to goodwill competitors,but the damage here does not require actual harm;(4)causal relationship—there is causal relationship between slander behavior and harmful consequence.In the second part, I mainly focus on the identification of slander behavior and the damage to business reputation. The identification for slander should comply with the “adverse and unnecessary standard”, while the identification for the damage to business reputation should comply with the “misleading standard”.In the third part, I base on specific criteria dividing the commercial speech of real life into three categories. And then put different types of commercial speech into the constituent elements of commercial slander to examine whether it constitutes commercial slander. Finally, the basis for the claims of the different types of business slander is discussed, excluding the application of the general terms of anti-unfair competition law.