Research on Freedom of Commercial Speech and Legal Regulation of Unfair Competition
The term"commercial speech"has been frequently used in the anti-unfair competition judicial practice of China,but the in-depth thinking about the relationship between unfair competition and freedom of commercial speech is very scarce.Outside the mainland of China,commercial speech is mainly manifested as commercial advertising and usually presented in the multiple facets of"constitutional protection"or"unfair competition regulation".The understanding of the concept of commercial speech in China is more broad,and the discussion context has gradually changed from the theoretical level of"constitutional protection"to the practical level of"unfair competition regulation".From the perspective of typed analysis tools,the Anti-Unfair Competition Law of China contains at least three different types of embedded,confrontational and misleading commercial speech,which are corresponding to three typical unfair competition behaviors of trademark confusion,commercial defamation and false publicity.Due to the different main predicaments and difficult problems faced by various kinds of behaviors,the delimitation between freedom of commercial speech and unfair competition can be realized in different ways:regarding the trademark confusion as the embedded commercial speech,the conceptual meaning of"certain influence"in the clause of market confusion can be established by means of legal hermeneutics;as an confrontational commercial speech,the commercial defamation may have a clear legal boundary with legitimate commercial comments through the method of interests measurement;regarding false publicity as the misleading commercial speech,through the analysis of constituent elements,the determination standard and covering range of"misleading"may be clarified.
万方数据
维普
