[Direct answer]In the Beijing area, false advertising is a specific type of unfair competition behavior, and the two are a relationship of inclusion and inclusion. According to Article 8 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019 and implemented since April 23, 2019), operators shall not make false or misleading commercial propaganda about the performance, function, quality, sales status, user evaluations, or honors of their products, in order to deceive or mislead consumers; the false advertising stipulated in this article is one of the statutory types of unfair competition behavior. Unfair competition behaviors also include imitation and confusion, commercial bribery, infringement of trade secrets, unfair prize-winning sales, commercial defamation, and unfair competition in the Internet field (see Articles 6 to 12 of the law). Therefore, determining that a certain behavior constitutes unfair competition does not necessarily mean that it is false advertising; but if it constitutes false advertising, it usually constitutes unfair competition at the same time, and the operator shall bear corresponding administrative responsibilities and civil compensation liabilities. The main difference between the two is the scope: unfair competition is a superordinate concept, and false advertising is a specific type of behavior under it.

1. Problem background and typical scenarios

Operators often confuse the boundaries between false advertising and unfair competition in market competition. Typical cases include: merchants being accused of false advertising for fabricating sales and reviews; using packaging similar to well-known brands and being claimed of counterfeiting and confusion; suppressing competitors through commercial defamation; being held accountable for infringing trade secrets; and unfair competition in data and traffic in the Internet field. The constitutive elements, evidentiary focus, and liability consequences of different behaviors are different. Accurately distinguishing between them helps choose the right remedial path. With a fully competitive market and active rights protection in the Beijing area, clarifying these two concepts is of practical significance for operators' compliance and rights holders' protection of their rights.

II. Key points of contention

First, what are the constitutive elements of false advertising, and how can it be distinguished from misleading commercial propaganda? Second, what specific types of behavior are included in the scope of unfair competition? Third, what are the differences in administrative responsibility, civil compensation, and evidentiary rules between the two? Fourth, how should rights holders choose a case basis and organize evidence when seeking remedies? Fifth, how should multiple provisions be applied and handled concurrently when the same act violates multiple regulations? Sixth, what are the feasible defenses available to the accused party? Clarifying these issues is essential to accurately defining the nature of the behavior and selecting appropriate response strategies.

III. Professional analysis by Henglue Law Firm

Based on the practical experience of Henglu Law Firm in handling intellectual property and competition disputes, we can grasp it from three aspects. Firstly, the scope is different: unfair competition is a broader concept, covering various types such as counterfeiting and confusion, commercial bribery, false advertising, infringement of trade secrets, unfair prize-winning sales, commercial defamation, and unfair competition on the Internet; false advertising is just one of the specific behaviors, and the two are an inclusive relationship. Secondly, the constituting elements are different: the core of false advertising is making false or misleading claims about products or operations to deceive and mislead consumers; counterfeiting and confusion focuses on similarities in logos and the possibility of confusion; commercial defamation requires fabricating and spreading false or misleading information to damage business reputation. The evidentiary emphasis of each behavior is different. Thirdly, the responsibilities and remedies are different: if it constitutes unfair competition, the parties may bear civil liabilities such as cessation of infringement and compensation for losses, as well as administrative penalties; false advertising is subject to advertising regulations, and serious cases may constitute the crime of false advertising. In practice, the same behavior may violate several provisions at the same time. It is necessary to choose the most favorable case basis and claim basis based on the specific facts, and the right holders should promptly fix the advertising content, evidence of confusion, and materials of losses.

IV. Practical suggestions and legal basis

Action List: First, distinguish the types of behaviors to determine whether they constitute false advertising, counterfeiting and confusion, or commercial defamation, and assert claims accordingly; Second, fix the evidence of the advertising content, advertising channels, and impact scope, and, if necessary, preserve the evidence through notarization; Third, organize evidence of the losses and causality to support the claim for compensation; Fourth, pay attention to the connection between administrative complaints and civil litigation, which can be carried out in parallel; Fifth, the defendant should organize defenses from the perspectives of the authenticity of the advertisement, the absence of confusion, or the absence of damage. Legal basis: Articles 6 to 12 and Article 8 and Article 17 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019 and implemented on April 23, 2019), relevant provisions of the Advertising Law of the People's Republic of China (amended in 2021), and Article 1165 of the Civil Code of the People's Republic of China (implemented on January 1, 2021). For disputes involving intellectual property and competition, please consult us for advice.Intellectual property protection and corporate lawTeam; it can be referred to for corporate contracts and commercial disputesBusiness and contract disputes in enterprisesService; for other difficult matters, we can provide assistanceSpecial services and other casesThe above provisions are for reference only. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

Firstly, unfair competition is an overarching concept, and false advertising is a specific type under it. Secondly, the constituting elements and evidentiary focuses of each type of behavior are different, and they cannot be confused with each other. Thirdly, false advertising may also violate the Advertising Law, and the circumstances may constitute a criminal offense if they are serious. Fourthly, when claiming compensation, it is important to provide evidence of the loss and the causal relationship. Fifthly, the defendant should choose the appropriate defense strategy based on the nature of the behavior. For disputes involving counterfeiting of registered trademarks and criminal offenses, legal assistance can be sought.Criminal defense and criminal case filingThe plates, which involve compensation, recovery of damages, and enforcement, can be combined togetherCreditor's rights and debts, and enforcementFor any questions regarding corporate compliance, please feel free to consult us.Business and contract disputes in enterprisesTeam.

VI. Frequently Asked Questions

Q1: Is false advertising considered unfair competition?

It belongs to. According to Article 8 of the Anti-Unfair Competition Law, operators shall not make false or misleading commercial promotions about the performance, function, quality, sales status, user reviews, or honors of the goods, in order to deceive or mislead consumers. The false promotion stipulated in this article is a statutory type of unfair competition behavior. Therefore, constituting false promotion usually constitutes unfair competition, and the operator shall bear administrative and civil liabilities in accordance with the law.

Q2: What behaviors constitute unfair competition?

The main ones include: counterfeiting and confusion (unauthorized use of others' trademarks with certain influence), commercial bribery, false advertising, infringement of trade secrets, improper prize-winning sales, commercial defamation, and acts of hindering or disrupting the normal operation of online products or services legally provided by others in the Internet field. In addition, the law also provides a catch-all clause. The constituting elements of different acts are different, and it is necessary to judge which category they belong to based on the specific facts.

Q3: What are the differences in compensation between the two?

Unfair competition is a broad concept. For all kinds of acts, compensation can be claimed in accordance with Article 17 of the Anti-Unfair Competition Law, determined based on the actual losses or the profits gained from the infringement, and reasonable legal defense costs can also be claimed. If false advertising also constitutes a false advertisement, administrative fines may also be imposed in accordance with the Advertising Law. The compensation rules are generally consistent, but the emphasis of evidence is different: false advertising focuses on the falsity or misleading nature of the advertisement, while counterfeiting and confusion focuses on the similarity of logos and the possibility of confusion.

Q4: If you are accused of false advertising, how can you defend yourself?

There are three possible defenses: First, the promotional content is true and based on facts, and does not constitute falsehood or misleading; Second, the relevant statements are reasonable commercial praise or industry-standard expressions, which do not affect consumers' decision-making; Third, no actual damage has been caused or there is no causal relationship between the loss and the promotion. At the same time, materials such as the product's qualifications, inspection reports, and promotional bases should be preserved. If it is indeed a violation of regulations, promptly rectify the situation and strive for a lenient punishment. If necessary, hire a lawyer to intervene and deal with the situation.

Q5: What evidence is needed to determine unfair competition?

Generally, it is necessary to prove that the perpetrator has engaged in competitive behaviors as stipulated by law, that such behaviors are unfair, that the rights holder has suffered damages, and that there is a causal relationship between the two. The specific evidence varies depending on the type of behavior. For example, for false advertising, the evidence includes the advertised content and evidence of its falsity; for counterfeiting and confusion, the evidence includes similar logos and evidence of confusion; for commercial defamation, the evidence includes false information and evidence of damage to business reputation. The rights holder should promptly fix the evidence, and, if necessary, preserve it through notarization, and organize materials related to the damages and causal relationship.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudication guidelines in other regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.