On The Identification Standard Of Comparative Advertising

The number of the world's top 500 enterprises,with the deepening of reform,but also by the number of reform has now occupied over 1/5.The number of brands of goods is also growing.Consumers choose a larger space,from the previous passive choice of a product to a wide range of products in the random selection,enterprises to establish and maintain their own brand awareness is also growing.And can quickly take shelter in this brutal market,stable occupy a space for one person of their own;how to get consumer dependence;how to maximize sales success based on fixed costs,so that their new product or service market quickly occupy the market,enterprises can be described as painstaking.Advertising,as a link between production and sales,allows consumers to quickly understand the relevant products or services.Among them,comparative advertising because of its unique contrast highlights the charm,attracting many operators.However,because our country has not yet formulated specifically for comparative advertising law,slander emerging comparative advertising also frequently issued,special laws on defamation type of comparative advertising,there have been serious and the market economy society.Based on the competition law as the observation and analysis,this paper analyzes the standard of the identification of the comparative advertising.This paper through the analysis of judicial practice,put forward China's lack of clear standards of comparative advertising in slander,clear what is the basis of comparative advertising,analyzes the two aspects of "slander" and "comparative advertising",in order to explore the identification standard of slander comparative advertising is what.There are four parts in this paper:The first chapter is the analysis of the case to sort out the problem of defamation comparative advertising in China's judicial practice.First of all,comparative advertising is precondition of defamation of comparative advertising,but China's laws and regulations in the provisions of the comparative advertising is not systematic,scattered in various provisions,no unified standard of "comparison",compared to what extent is appropriate,compared what specific effect is legitimate,and these abstract it is difficult to control the standard,makes the judge case in the judicial practice of the referee has strong subjectivity and.Article fourteenth of the "Anti Unfair Competition Law" has made the following provisions on commercial defamation: "it shall not fabricate or spread false facts,damage the commercial reputation and reputation of the competitors." "Secondly,for slander type comparative advertising,the administration of justice in our country generally use the" Anti Unfair Competition Law on defamation law regulations,"Regulations for defining false facts has been unable to meet the development of market economy in the new situation,People's Republic of China's anti unfair competition law the new"(Revised draft)"article eleventh has been explicitly incorporated into the spread of reputation information for defamation of commercial reputation and commodity comprehensive behavior." People's Republic of China " Anti Unfair Competition Law(Revised Draft)" article eleventh: operators shall not fabricate or spread false information,malicious evaluation information,spread incomplete or unable to confirm the information,harm the commercial reputation.But in the final amendment removed this article,maintaining the original can not fabricate,spread false facts.The author believes that comparative advertising has unique advantages,in determining whether belongs to commercial defamation,its contents can be false,also contains the true,but the harm to others to slander business reputation or product reputation.The second chapter discusses the comparative advertising,including its definition and the three types of unfair comparative advertising.Because the premise of comparative advertising is comparative advertising,so we should be in the analysis of how to identify the comparative advertising should be more understanding of comparative advertising.China's "advertising law" involved in comparative advertising is thirteenth.This provision of comparative advertising is not very clear,in judicial practice,the judge to judge the lack of a strong basis of comparative advertising.Therefore,the author of some foreign countries and regions on the concept of comparative advertising,comparative advertising is in the advertisement,directly or indirectly compare their products or services with a rival product or service.China's comparative advertising in addition to special areas,is not limited,but if the improper use of comparative advertising is likely to constitute unfair competition.Comparative advertising competition unfair,according to the object and the behavior of their violation,can be divided into three types: slander type comparative advertising,comparative advertising and false type cling type comparative advertising.In order to be able to make it clear that the area is divided into non comparative advertising and comparative advertising,the author first of all,according to the type of commercial defamation,combined with case analysis of the type of comparative advertising.According to whether the content of slander for personal subjective feelings,subjectivity and objectivity for slander slander;according to the comparison of different ways,divided into direct and indirect slander slander;slander in objectivity,according to the content is true,divided into the one sidedness of slander and false slander.The third chapter mainly discusses the standard of our country's comparative advertising.First analyzes the standard clear slander comparative advertising meaning,clear standards is not only conducive to managers to make reasonable expectations of their advertising behavior in business activities,is to protect the legitimate rights and interests of the consumers right to know etc..Secondly,to specify the standard type slander of comparative advertising,we need three principles: to the product or service needs for the cognitive subject,or common sense to attention as the standard,to discredit the results oriented.According to the different types of comparative advertising,a comprehensive analysis of the identified standards.To meet the interests of the relevant standards,the inevitable connection standards,inappropriate comparison standards and misleading standards,constitute a comparative advertising slander.Finally,according to the standards proposed by the relevant legislative proposals in order to solve the dispute in the judicial practice.