The Compensation Of Commercial Defamation

Goodwill brings excess profit for enterprises and has become a more and more importantintangible asset. Commercial defamation actions happen from time to tome in the fierce competitionmarket. The infringer implements the action to for market share or to bring down the rivials.Although goodwill is in protection by the competition law, but the strength of the competition lawon the protection is far from enough. The <anti-unfair competition law> of China has only oneclause that provides claims for damages for all acts of unfair competition. It ignores the complexityin counting damages caused by the particularity of goodwill. Chinese legislation on goodwillprotection is lagging far behind the judicial practice and it needs perfection. In this paper, the authorbased on the practice, through the case summary form to study commercial defamation claims fordamages. The article main body is divided into three parts: the first part is the plight of thecommercial defamation damage; The second part is about the country or region regulations; Thethird part is our country commercial defamation damages of concrete perfect recommendations.The first part discuss plight of the damage of our commercial defamation system from threeaspects: the main body, damages and presenting evidence system. Due to the judges’s differentcomprehension to the subject of the "anti-unfair competition law" in the third paragraph of article2definition, the courts acts differently in identifying the subject. Some courts identify the damagecompensation stringenlyt, others affirm subject that without competitive relation or are notoperators as the damage compensation responsor. The different comprehension of the clausebetween the judges leads verdicts in the same case. The calculation of damage lacks of operabilitywhen calculated on the basis of the loss of the plaintiff or the defendant’s profit damages. Thediscretionary factors of statutory damage are unreasonable. In terms of proof, because of theparticularity of goodwill damage, the plaintiff can not put enough evidence to prove the actualloss.The second part mainly analyzes the commercial defamation damage compensation system ofGermany, Japan and Taiwan area, including the definition of operators, scope of damages, andcalculation method in damages. Germany, Japan and Taiwan’s legal system belong to continentallaw system, there law system are and more closed to our’s in the aspects of the law of unfaircompetition. It’s provisions on commercial defamation damage compensation are more perfect which has a more referrence significance.The third part is the key point of this article, put forward a sound proposal based on theanalysis of our country commercial defamation damages existing deficiencies and draw lessonsfrom foreign relevant experience: Firstly, the law should expand explanations of commercialdefamation damages subject; Secondly, explicitting the commercial defamation damagecompensation scope and clear damages calculation; Thirdly setting up reasonable legalcompensation legal and the discretionary factors of statutory damage; Fourthly, reduce theplaintiff’s burden of proof standard in the relationship between loss and infringement.