| Judiciary authorities tend to be overprotective when applying the general clause of the Anti-Unfair Competition Law (AUCL) to innovative products that are expressly excluded by intellectual property law, thus leading to an imbalance of interest between business operators and their competitors involved in a specific dispute. The AUCL, which employs a behavioral regulation approach, has a relatively low tolerance for the scope of the market controlled by a business operator. That is to say, the general clause should provide limited protection for business operators, the extent of which can be delineated by market definition. Based on the differential protection as required by the primary and secondary markets, the protection scope of the general clause of AUCL should be limited only to business operators’ primary market where their minimum incentive could be preserved, and they should never be entitled to the control of relevant secondary markets. No unfair competition liability should be found if a competitor’s use of a business operator’s operating result only aims for competing in the latter’s secondary market, or what the competitor has used is merely an independent byproduct deriving from the business operator’s primary market. The definition of secondary market follows a progressive method that contains “experience-based judgment—verification of revenue or investment—a hypothetical test”. As for the introductory plan, the differential-protection idea should be incorporated into the element of damage under the balancing-of-interest framework, thus limiting damage only to those having an effect of substantial substitution on the business operator’s primary market. |
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