Unfair competition refers to any actions in competition that contradict trade and other fair practices in business activities.
Anticompetitive actions include the unlawful use of the business reputation of other entities, which encompasses:
- Unauthorized use of another entity’s name, commercial (corporate) name, or trademark (mark for goods and services);
- Copying the appearance of a product;
- Unauthorized use of another manufacturer’s product;
- Comparative advertising, and more.
Another category of actions classified as unfair competition involves creating anticompetitive obstacles for business entities and gaining unjust advantages. This includes:
- Disseminating false or inaccurate information about goods that damages the business reputation of an entity;
- Inducing a supplier to discriminate against a buyer;
- Bribery of employees or officials of a supplier or buyer (customer);
- Spreading misleading information about goods and services.
- The unlawful collection, disclosure, and use of trade secrets also constitute unfair competition under the law.
The unlawful collection, disclosure, and use of trade secrets also constitutes unfair competition under the law.
Specific types of anticompetitive actions correspond to particular remedies available for protection.
For example, to prevent the unauthorized use of your product’s name, commercial (corporate) name, or trademark (mark for goods and services), it is advisable to obtain a certificate for trademarks, rights to indications of product origin, perform international trademark registration, join the unified classification of goods and services for trademark registration, and register a commercial name.
To prevent the unlawful collection, disclosure, and use of trade secrets, access to such information can be restricted, and employees can be held accountable for disclosing it.
If unfair competition has already occurred, it is advisable to file a complaint with the Antimonopoly Committee of Ukraine or submit a claim to the court to protect your violated rights and interests and seek compensation for damages. In some cases, it may be appropriate to conduct negotiations with unfair competitors, send them formal letters demanding they cease anticompetitive actions, or use mediation.
Engaging in unfair competition can result in the Antimonopoly Committee of Ukraine imposing a fine of up to five percent of the income (revenue) from the sale of goods, works, or services for the last reporting year preceding the year the fine is imposed. If there is no income (revenue), the fine may be imposed at an amount of up to ten thousand non-taxable minimum incomes of citizens.
Individuals who have suffered harm as a result of actions defined by law as unfair competition may, in addition to the Antimonopoly Committee of Ukraine, file a claim with the court seeking compensation for such harm.
In court, you must prove both the amount of damage and the causal link between the unfair competition and the harm caused. This is often quite challenging in practice. Therefore, it is advisable to consult an attorney specializing in this area of law when filing a claim for compensation.
Each of the protection methods mentioned above is characterized by its specific level of accessibility and effectiveness for a business entity, both when unfair competition poses a potential threat and when it has already occurred. Moreover, the choice of an effective protection method directly depends on the specific type of anticompetitive actions involved. Thus, to correctly qualify the improper actions of competitors as unfair competition and to select an effective means of protecting violated rights, it is essential to consult lawyers specializing in competition protection law.
With extensive experience in this field, our attorneys can, when justified, qualify certain improper actions of your competitors as unfair competition and take measures to prevent the negative consequences of such unfair actions.
Winnerlex Law Firm provides the following services in addressing unfair competition:
- Providing legal consultations on matters related to unfair competition;
- Conducting legal assessments and evaluations of the activities of market participants in Ukraine to determine the presence or absence of unfair competition in their actions;
- Analyzing advertising materials and campaigns for potential violations of legislation on protection against unfair competition;
- Conducting negotiations and sending formal requests demanding the cessation of rights violations through unfair competition;
- Developing methods to protect against unfair actions by competitors;
- Preparing applications to the Antimonopoly Committee of Ukraine for protection against unfair competition;
- Representing clients before the Antimonopoly Committee of Ukraine during the consideration of cases involving unfair competition;
- Appealing decisions of the Antimonopoly Committee of Ukraine;
- Representing clients in court in cases related to unfair competition and seeking compensation for damages caused by such actions.
Practice experience: 19 years
Specialization: litigation support, tax, customs and antitrust practices, agricultural law, IT and M&A
Practice experience: 21 years Specialization: support of economic, civil, labor and administrative disputes, energy
Practice experience: 11 years Specialization: tax, customs and corporate disputes, support of inspections, contractual activities
Practice experience: 6 years
Specialisation: business and civil law, tax and customs practice, corporate law, registration and reorganisation of business
Practice experience: 11 years Specialization: support of economic, civil, labor and administrative disputes, inspections
A complaint about anti-competitive actions must be submitted to the AMCU within six months from the date the affected party became aware or should have become aware of the violation of their rights.
Failure to submit the complaint within this period is grounds for refusal to accept the application, except in cases where the AMCU recognizes the reasons for missing the deadline as valid.
An important deadline is the deadline for bringing to justice. According to the law, a person cannot be held liable for unfair competition if the statute of limitations has expired. The limitation period is three years from the date of the violation or, in the case of a continuing violation, from the date the violation ended.
If competitors have disseminated false, inaccurate, or incomplete information (discreditation) about the goods or services of your company, you can request the AMCU to issue a decision requiring the offender to officially retract the false, inaccurate, or incomplete information at their expense.
To establish that the actions of a business entity contradict trade or other fair practices in commercial activity, the AMCU must, in its decision based on the case review, identify the specific rule of conduct considered a custom that has been violated by the entity. The AMCU must also provide evidence of the content of this rule.
If you disagree with the decision of the Antimonopoly Committee of Ukraine, such a decision, if there are sufficient grounds, may be appealed in court.
When reviewing a lawsuit to declare the AMCU’s decision invalid concerning a violation of legislation on protection against unfair competition and the imposition of a fine, the commercial court is not tasked with directly establishing the presence or absence of an act of unfair competition by the offender. Instead, it must verify the existence or absence of legally defined grounds for invalidating the AMCU’s decision. This involves assessing the completeness of the investigation and the validity of the AMCU’s conclusions.
Intellectual property Protection of rights to IP objects and suppression of unfair competition