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Trade practice and unfair competition

Selected Papers of The Jurist (法学家), Volume 5

Fan Changjun

The decisive criterion for the specification of the general clause in the Law Against Unfair Competition Law is the balance of interests. Favorable trade practice can be used as the basis for evaluating the interests balance. The Robots Exclusion Protocol, although acknowledged as current trade practice, fails to coordinate the interest conflicts in the search engine industry. Thus it cannot be accepted as a favorable trade practice. In order to protect the interests of authors, the search engine industry, and the public, it is suggested that work communicators cannot prevent others from searching based on the Robots Exclusion Protocol. However, this kind of searching must be limited to a certain degree. In the lawsuits between Baidu and 360, both sides have conducted unfair competition. Keywords: Trade practice; unfair competition; general clause; the Robots Exclusion Protocol