Tencent V. Qihoo Unfair Competition Case Analysis

With the rapid development of the Internet industry in the field of unfair competition intensified,the unfair competition is heating up and the type of it is variable.Unfair competition in the Internet industry has both the general characteristics of unfair competition, and more puzzling because of the complexity of the Internet industry. Tencent v. Qihoo unfair competition in the Supreme Court case was settled in February 2014. But the case was quite worth exploring regarding to the indentifing of unfair competition and commercial defamation the related issues are especially important in the Internet industry.This article starting from the unfair competition of the Tencent v. Qihoo case based on the disputes of the issues and pointing of the contention in the case related to unfair competition and commercial defamation,then to make relevant suggestions.At the same time focus on the calculation of unfair competition in the Internet industry for damages after combing the relevant laws and regulations, combined with industry characteristics and subject characteristics, for damages for the Internet industry to submit a comprehensive proposal.In accordance with the relevant provisions of the law of our country,acts of unfair competition in violation of the relevant operator refers to the legal provisions of the Anti-Unfair Competition Law, prejudice the legitimate interests of other operators, disrupt social and economic order. The recognition of an act of unfair competition is to examine the subjective aspect of the operators,at the same time also a study focused on the operator itself wether violate the principle of good faith and business ethics. And the essence of the violation of unfair competition law is against the principle of good faith which embodies the spirit of law and other universally recognized principles of business ethics.Goodwill contains business reputation and product reputation. As a holistic social assessment, goodwill reflects the public operator products, services, corporate culture, corporate image and other aspects of identity cards.We can say that it represents the operators in a market economy, and means a general social image.As an intangible value,goodwill can bring huge economic benefits and social benefits for the operators. Although China commercial defamation provisions in practice have relatively operability, in some areas there is still insufficient, mainly as for the main range of commercial defamation provisions are too narrow; the consequences of commercial defamation provisions too shabby;business way too biased on slander.These need to be further improved.For acts of unfair competition and commercial defamation actions are identified, the last to be settled is the calculation of damages. Combing a variety of compensation principles and calculation methods, the Internet industry for damages for unfair competition, the introduction of the principle of punitive damages on the principle of compensation is appropriate.Compensation should include the victim’s loss of interest and the goodwill which both can be expected due to unfair competition behavior.The calculation method in parallel with the actual losses infringer profits presumed infringement law as the basic method, and also the indirect costs of lost interest.