Regulation Of Anti-unfair Competition Law On Malicious Intellectual Property Rights Complaints On E-commerce Platforms

Justified complaint behavior belongs to the right holder to maintain their own rights and interests of legal weapon,but in recent years beyond the right boundary of the prohibition complaint behavior,each year because of complaints of malicious behavior of individual interests and social interests of huge loss,academic circles the attention to this phenomenon and the pressure from study is still not enough to support the judicial practice.Judging from the current judicial cases and literature,judges and scholars have begun to pay attention to the harm of malicious intellectual property complaints on e-commerce platforms,but there is still no conclusion on the identification and regulation of this behavior.The judgment ideas of Chinese courts for malicious complaint cases can be roughly divided into the following two kinds: the first is the "protection of rights and interests" idea under the tort law,that is,taking the legitimate rights and interests protected by law as the starting point,and combining with the damages of rights and interests caused by the complainant’s subjective malicious and complaint behavior,the reverse inference that the competition behavior is unfair;The second is the idea of "behavior legitimacy" under the competition law,that is,returning to the competitive behavior itself,judging according to business ethics or the impact on the competitive advantages of other operators,so as to further deduce the conclusion of whether the competitive behavior is unfair.Judicial workers are bound by the thinking of generalization of rights behind the thinking of "protection of rights and interests",which does not conform to the nature and positioning of the new Anti-Unfair Competition Law.Although the path of "conduct legitimacy" is more advantageous,there are still the following problems in the application process: First,the constituent factors of the regulation of malicious complaint behavior by the commercial ethics clause are not clear,such as whether the fault elements are necessary for the identification of legitimacy and the definition and scope of the competition between subjects are unclear;Second,the commercial defamation clause is not operable enough to regulate malicious complaints.For example,what kind of speech can be deemed as defamatory information and there are disputes in the theory of subjective imputability principle are the difficulties that need to be solved urgently in judicial determination.Thirdly,there is the problem of lack of calculation method and disunity of consideration factors in the compensation of infringement loss caused by malicious complaint.To solve above problems,through the anti-unfair competition law regulating electric business platform for the legitimacy of intellectual property malicious complaints analysis,in the application of the method is not clarify the legitimacy identification shall follow the behavior as,emphasize competition behavior itself characteristic,break the shackles of traditional thinking,on the basis of efficiency standard,emphasize the pursuit of economic efficiency.Finally,malicious complaints need to be clarified in the judicial practice in business ethics under the terms of components,the introduction of "tort system of warning letter" to enhance business denigrating the terms of the feasibility and optimization of malicious complaints behavior of civil compensation system perfect and suggested to take the platform autonomy and anti-unfair competition law regulation of the combination of comprehensive governance model.