問20
頻出度★★★
不正競争防止法の不正競争に該当するものはどれか。
平成23年度 特別試験 ITパスポート試験 問20
ストラテジ系法務 › 知的財産権
This question's explanation and your answers so far.
解説
問 20
Incorrectア
An act that lowers a competitor's credibility counts as unfair competition only under the business-disparagement type, that is, when someone states or spreads “false facts” that harm the business reputation of another party in a competitive relationship. The key point here is that the facts being false is a requirement. What was publicized in ア is a true fact — an antisocial act the other company actually committed — so it is not the stating or spreading of false facts, and therefore not unfair competition under the Unfair Competition Prevention Act. If the manner of publication were grossly improper it could still raise issues under other laws such as defamation, but that falls outside the framework of the Unfair Competition Prevention Act that this question asks about.
Incorrectイ
Unfair competition involving domain names means acquiring, holding, or using a domain name that is identical or similar to another party's indication of goods or business “for the purpose of obtaining a wrongful gain, or for the purpose of causing damage to another party.” This subjective requirement of a wrongful-gain or harm purpose is what decides whether the offense is established. In イ, the domain name used by one's own company happened to resemble another company's, and there is neither an intent to free-ride on another party's reputation nor an intent to cause the other side harm. Because the purpose requirement is missing, it is not unfair competition.
Incorrectウ
An idea printed in a newspaper is information that is already publicly known, so it fails the requirement of not being publicly known (and also secrecy management) among the three requirements for a trade secret. Referring to it therefore does not amount to wrongful use of a trade secret. Moreover, what was developed was not a copy of the cleaning tool but original stationery, so it is not imitation that reproduces another party's product form as it is (a dead copy) either. Taking a hint from publicly available information and creating one's own product is, on the contrary, recognized as ordinary business activity.
- エ
正解 The correct answer is エ. To ensure fair competition among businesses, the Unfair Competition Prevention Act lists the acts that count as unfair competition by type, and makes them subject to injunctions, claims for damages, and, in serious cases, criminal penalties. One of its core types is unfair competition involving trade secrets. To be protected as a trade secret, information must satisfy all three requirements: (1) secrecy management (it is managed as a secret), (2) usefulness (it is technical or business information useful for production methods, sales methods, or other business activities), and (3) not being publicly known. In エ, the person knows that the information obtained from a business partner is another company's trade secret, yet uses it within their own company. The Act regulates not only the person who directly steals a trade secret, but also a third party who acquires, uses, or discloses that trade secret while knowing (or not knowing through gross negligence) that a wrongful acquisition or a wrongful disclosure was involved — a so-called bad-faith subsequent acquirer. In other words, even if your own company did not do the taking itself, using the information while knowing that its source is another company's trade secret is illegal. This is the key point of this question. Therefore エ, using information while knowing it is a trade secret, constitutes unfair competition.
ここがポイント
- The main types of unfair competition set out in the Unfair Competition Prevention Act — causing confusion with, or free-riding on, well-known or famous indications of goods or business; imitating another party's product form (a dead copy); wrongfully acquiring, using, or disclosing a trade secret; wrongfully acquiring or using a domain name for wrongful gain or to cause harm; indications that mislead as to origin, quality, and the like; and stating or spreading false facts that harm the business reputation of another party in a competitive relationship (business disparagement). Whether an act qualifies is judged by whether it fits one of these types.
- The three requirements for a trade secret and the bad-faith subsequent acquirer — to be protected as a trade secret, information must satisfy all three: secrecy management, usefulness, and not being publicly known. Publicly available information is not protected because it lacks the last of these. Also, even someone who is not the person who did the stealing commits unfair competition if they acquire, use, or disclose the trade secret while knowing (or not knowing through gross negligence) that a wrongful acquisition or wrongful disclosure was involved.
用語