反不正当竞争法中的禁止盗用规则及其适用

The Rule Against Misappropriation in Anti-unfair Competition Law and its Application

禁止盗用规则是指在专利法和著作权法的保护之外,采用反不正当竞争法对智力成果法益提供补充保护的规则,对于解决涉及盗用时效信息、数据库和商业设计等智力成果的纠纷具有重要价值。禁止盗用规则的正当性基础在于防止市场失灵,为此应当借鉴侵权行为而非不当得利的理论进路,不仅需要关注经营者的损害,更需要强调对整体市场竞争秩序的维护。我国应构建禁止盗用规则的理论框架,为反不正当竞争法一般条款的适用提供指引,适用标准包括竞争手段和竞争后果两要件,其中竞争手段要件需要结合竞争属性、实质性投资、注意义务进行认定,竞争后果要件需要从竞争关系、盗用比例、损害后果门槛展开分析,以此形成一个互相协调的动态判断系统。此外,还须谨慎地划定禁止盗用规则在保护对象、规制行为和有效期限上的边界。

In addition to the protection of patent law and copyright law,the rule against misappropriation in anti-unfair competition law is used to provide supplementary protection for the legal interests of intellectual achievements,which is of great value to solve the misappropriation disputes of time limited information,database,business design and other typical intellectual achievements.The justification of the rule against misappropriation is to prevent market failure,therefore,we should learn from the theoretical approach of tort rather than unjust enrichment,and not only pay attention to the damage to operators,but also emphasize the maintenance of market competition order.In order to provide guidance for the application of the general provisions of the anti-unfair competition law,we should establish the theoretical framework of the rule against misappropriation.The criteria for determining the rule of prohibiting misappropriation include two major parts.The competition means need to be identified in combination with the three elements of competitive individuality,substantial investment and duty of care.The requirements of the competition consequences refer to the strict competition relationship,the proportion of the stolen content,and substantive damage consequences.These elements are analyzed to form a coordinated dynamic judgment system.The application of the rule against appropriation must carefully delimit the boundary of the object of protection,the behavior of regulation and the term of validity.