The view that implicit uses constitute unfair competition is characterized by the value bias of moral judgment and the logical drawback of circular argumentation,which cannot stand on feet.The claim that implicit uses is free-riding that creates negative externalities and thus gives rise to the need for legal intervention is a misapplication of the theory of externalities and is not valid.Competitive harm caused by implicit uses,if any,is neutral.When applying Article 2 of Anti-Unfair Competition Law of PRC to determine whether implicit uses constitute unfair competition,it should focus on their social cost-benefit structure under the perspective of reciprocity of harms,i.e.,taking as the ultimate evaluation standard their net effect on"the interests of businesses,the interests of consumers and the order of market competition"as a whole.This requires the court to conduct an objective and comprehensive economic analysis based on each case's particular circumstances.At present,with the exception of a few special cases,implicit uses have a limited negative impact on the interests of the plaintiff businesses,but can bring substantial benefits to the defendant businesses and consumers and promote an efficient order of market competition,and thus generally shall not constitute unfair competition.
关键词
隐性使用/搭便车/搜索关键词/竞价排名/不正当竞争/损害相互性
Key words
Implicit use/free riding/Search keyword/Paid listing service/Unfair competition/Reciprocity of harm
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