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630 Електронне наукове видання «Аналітично-порівняльне правознавство»
Ursu V., Mustața E. The objective side of
the crime of unfair competition: theoretical
and practical aspects.
Market relations assume the coordinated
operation of three basic mechanisms: competition,
supply and demand, and prices that set the entire
economic system in motion. Economic agents are
forced to enter into competitive relations with
each other, but economic entities are not always
conscientious and honest, respecting the rights
and interests of both bona de competitors and
operating according to honest customs, as well
as the clientele/consumers. Protection against
unfair competition stands out as an independent
legal institution that deserves a detailed study
due to its importance for the development of
competition and business relations. The Moldovan
legislator adopted a series of normative acts
aimed at regulating the legal relations that arise
between the subjects of economic activity in the
process of carrying out this activity, including, to
ensure their normal realization, the protection
of fair competition, the rights and interests of
competitors and citizens. For the violation of the
“rules of the game”, state reaction measures are
provided by establishing legal liability, including
criminal. A good understanding of the essence
and legal nature of the crime of unfair competition
provides us with the legal-criminal analysis of the
composition of the crime provided for in art. 2461
of the Criminal Code.
The article is dedicated to the analysis of the
objective side of the crime of unfair competition,
the authors focusing on the theoretical and
practical aspects of this constitutive element of
the crime.
Based on the provisions of art. 2461 of the
Criminal Code, the authors undertook a study of
the ve normative methods under which the crime
of unfair competition is presented, relating them
to the methods provided for in Law no. 183/2012
on competition, but also to the provisions of the
Paris Convention for the protection of intellectual
property, thus trying to highlight the factual
manifestations of the analyzed crime, including
elucidating the nature and legal essence of these
modalities.
The study undertaken allowed the authors to
draw certain conclusions which, in turn, suggested
certain ideas of legislative proposals that would
improve the quality of the legal-penal norm
contained in art. 2461 of the Criminal Code of the
Republic of Moldova.
Key words: unfair competition, confusion,
misleading consumers, discrediting the enterprise,
the act of unfair competition, competitor, consumer,
clientele, diversion of clientele.
Урсу В., Мустяца E. Об’єктивна сторона
злочину щодо недобросовісної конкурен-
ції: теоретичні та практичні аспект.
Ринкові відносини передбачають злагоджену
роботу трьох основних механізмів: конкурен-
ції, попиту та пропозиції та цін, які приводять у
рух всю економічну систему. Суб’єкти господа-
рювання змушені вступати між собою в конку-
рентні відносини, але суб’єкти господарювання
не завжди є сумлінними та чесними, поважаю-
чи права та інтереси як сумлінних конкурентів
і діючи за чесними звичаями, так і клієнтури/
споживачів. Захист від недобросовісної конку-
ренції виділяється як самостійний правовий ін-
ститут, який заслуговує на детальне досліджен-
ня через його значення для розвитку конкурен-
ції та ділових відносин. Законодавець Молдови
прийняв низку нормативних актів, спрямованих
на регулювання правовідносин, що виника-
ють між суб’єктами господарської діяльності в
процесі здійснення цієї діяльності, у тому чис-
лі щодо забезпечення їх нормальної діяльності,
UDC 342.1
DOI https://doi.org/10.24144/2788-6018.2024.02.105
THE OBJECTIVE SIDE OF THE CRIME OF UNFAIR COMPETITION:
THEORETICAL AND PRACTICAL ASPECTS
Ursu V.,
PhD law, professor
veaceslavursu1971@gmail.com
ORCID: 0000-0002-0696-4391
Mustața E.,
PhD candidate, Doctoral School
Criminal science and public law
ORCID: 0000-0002-3864-4384
e-mail: eugeniu.musteata777@gmail.com
631
захисту добросовісної конкуренції, прав та ін-
тересів конкурентів і громадян. За порушення
«правил гри» передбачені заходи державного
реагування шляхом встановлення юридичної
відповідальності, в тому числі кримінальної.
Добре зрозуміти сутність та правову природу
злочину недобросовісної конкуренції дає пра-
во-кримінальний аналіз складу злочину, перед-
баченого ст. 2461 КК.
Стаття присвячена аналізу об’єктивної сторо-
ни складу злочину недобросовісної конкуренції,
автори зосередили увагу на теоретичних і прак-
тичних аспектах цього складу злочину.
Спираючись на положення статті 2461
Кримінального кодексу, автори провели до-
слідження п’яти нормативних методів, за якими
представлено злочин недобросовісної конку-
ренції, пов’язуючи їх із методами, передбачени-
ми в Законі № 183/20212 про конкуренцію, а
й до положень Паризької конвенції про захист
інтелектуальної власності, таким чином намага-
ючись висвітлити фактичні прояви аналізовано-
го злочину, у тому числі з’ясувати природу та
правову сутність цих модальностей.
Проведене дослідження дозволило авторам
зробити певні висновки, які, у свою чергу, за-
пропонували певні ідеї законодавчих пропози-
цій, які б покращили якість кримінально-право-
вої норми, що міститься у статті 2461 Криміналь-
ного кодексу Республіки Молдова.
Ключові слова: недобросовісна конкурен-
ція, плутанина, введення споживачів в оману,
дискредитація підприємства, акт недобросовіс-
ної конкуренції, конкурент, споживач, клієнту-
ра, відведення клієнтури.
Introduction. The subjects of the economic
activity, whether they are natural persons or legal
persons, are obliged to exercise their activity in
good faith, according to honest usages, respecting
the interests of consumers and the requirements
of fair competition.
Based on the principles of freedom of trade and
freedom of competition, any merchant has the
right to attract the customers of its competitors.
Thus, the act of competition, even if it causes
damage to some economic agents, is not illegal by
itself, but only if the means, acts, or facts used to
attract customers are unfair.
Starting from these provisions, the local
legislator instituted liability and criminal
punishment for the act of unfair competition
by formulating the provision of art. 2461 of the
Criminal Code of the Republic of Moldova.
For an appropriation of the legal essence of the
act provided for in art. 2461 of the Criminal Code
of the Republic of Moldova, the criminal doctrine
elaborated the notion of the composition of the
crime by legislating it in art. 50 of the Criminal
Code and oers the juridical-criminal analysis of
the composition of the crime within which the
characterization of the constitutive elements of
the crime, namely, the object, the objective side,
the subjective side, and the subject of the crime.
The purpose of our analysis is to achieve
a characterization of the objective side of the
oense provided for in art. 2461 of the Criminal
Code as the main element, in our opinion, of the
composition of the given crime.
As can be deduced from the provisions of
art. 2461, the objective side of the oense of
unfair competition consists of the prejudicial act
that is expressed through action.
This action knows, among others, the following
ve alternative normative ways:
a) creating, by any means, confusion with
the enterprise, with the products, or with the
industrial or commercial activity of a competitor.
b) spreading, in the trade process, false
statements that discredit the enterprise, products
or entrepreneurial activity of a competitor.
c) misleading the consumer regarding the nature,
manufacturing method, characteristics, suitability for
use or quantity of the competitor’s goods;
d) using the company name or trademark in
a manner that causes confusion with those used
legitimately by another economic agent.
e) comparing for advertising purposes the
goods produced or sold by an economic agent with
the goods of other economic agents.
Next, we propose to carry out a characterization
of the ways of committing the act of unfair
competition in the variants formulated by the
legislator in art. 2461.
To achieve the proposed goal, we will use a
research strategy consisting of the tools provided
by the scientic research methodology, using the
following scientic methods: logical, comparative,
interpretative, etc.
Basic content and discussions. It is
imperative to mention that the legislator adopted,
through the criminal law, an open system of
counteracting, by way of criminal liability, unfair
competition. Thus, the Criminal Code, in art. 2461,
criminalizes “any act of unfair competition”.
Through the introduction by the Moldovan
legislator in art. 2461 of the phrase “any act of
unfair competition, including” leaves room for
interpretations, and we consider, along with other
local authors, that the methods specied in letters
a) – e) of this article are brought as an example,
and that apart from these methods, there are
others, namely those provided by the Competition
Law that fulll the list of methods of the prejudicial
act specied in art. 2461 of the Criminal Code. [1.
Page 172]
At the same time, once certain factual ways
by which unfair competition could be committed
РОЗДІЛ VIІІ. КРИМІНАЛЬНЕ ПРАВО ТА КРИМІНОЛОГІЯ; КРИМІНАЛЬНО-ВИКОНАВЧЕ ПРАВО
632 Електронне наукове видання «Аналітично-порівняльне правознавство»
(for example, through actions described in the
competition law) are not expressly provided for
in the provision of the rule from art. 246 1 of the
Criminal Code, whatever these may be, they will
never fall under the criminal law, and as a result,
they will not incur liability and criminal punishment,
the sanctioning of these actions being provided for
in the competition law.
Therefore, we consider it appropriate to
recommend the reformulation of the provision of
art. 2461 CP by excluding the phrase “Any act of
unfair competition, including”, mentioning only
that “ unfair competition committed through one of
the following actions: “, after which the modalities
provided for in the provision will be listed (either
in the current wording, or by completing with
others, for example from those provided in the
competition law). In this way, we will give the rule
greater clarity and predictability.
From the wording of the text of art. 2461, it
shows that a single oense was regulated with
ve alternative normative methods. Five oenses
were not regulated (one for each of the ve letters
of the text). This is because in the text of the
criminal law, the term act is used in the singular
– “act”, not in the plural – “acts”. The legislator’s
deciency consists in the fact that in the sanction
from art. 246 Criminal Code RM should have used
the words “punishes”, not “punish”, because the
crime as a whole is punished, not its methods. [2,
page 26]
In this sense, we submit the proposal to
the Moldovan legislator to remedy this gap, by
replacing the phrase “they are punished” with the
phrase “they are punished”. Moreover, the criminal
law of the Republic of Moldova knows similar
situations, the legislator not being consistent in
such cases.
At the same time, we consider doubtful the
position of the Moldovan legislator to criminalize
any act of unfair competition in the situation where
it has not even dened in the criminal law the
meaning of unfair competition and the concrete
indicators that a behavior must accumulate in order
to be qualied as a crime of unfair competition.
Given that the Criminal Code criminalizes the
most prejudicial acts, respectively, the criminal
law must have perfect clarity for all the elements
of the composition of the crime in the case of the
rules from the special part of the criminal law, to
be able to correctly classify the acts that would
constitute unfair competition oenses.
Thus, we believe that it would be appropriate
for the legislator to dene unfair competition,
taking into account the denition in art. 4 of the
Competition Law, as well as in the spirit of the
criminal law.
Corroborating the provisions of art. 2461 of the
Criminal Code with the provisions of art. 15–19 of
the Competition Law, we note that practically all the
methods of the oense of unfair competition are
contained in the Competition Law (or vice versa,
the criminal legislator being inspired by the text of
the competition law), except for one of them. The
exception is contained in art. 2461 lit. e) from the
Criminal Code, which criminalizes as an act of unfair
competition “ the comparison for advertising purposes
of the goods produced or sold by an economic agent
with the goods of other economic agents”. Such an
unfair competition action is not regulated by the
Competition Law. In certain situations, this could
be included in the act of defamation provided for
in art. 15 of the Competition Law, but only in the
situation when in the process of comparing the goods
or as a result of the comparison, false information is
spread. [1, page 174]
Considering how the provision of art. 2461 of the
Criminal Code is formulated, in other words, the
objective side of the crime of unfair competition,
it should be mentioned that this crime is a formal
crime, which assumes that it is considered to
be consumed from the moment of committing
the prejudicial action provided for in art. 2461 of
the Criminal Code of the Republic of Moldova, in
one of the ve ways described by the legislator.
For the existence of the crime, it is sucient to
establish that the subject has committed one of
the actions listed in the provision of the article, it
is not necessary to establish any damages caused
to bona de competitors or consumers (however,
it is obvious that both bona de competitors who
practice activity under customs suer, as well as
consumers who are deceived, misled, or confusion
is created, etc.). The prejudicial degree of the
crime analyzed resides in the very manner in which
the unfair competitor operates on the market.
We conclude that the objective side of the
oense is specied in art. 2461 of the Criminal
Code consists of the prejudicial act expressed in
the action, as the native criminalist V. Stati also
opines. [3, page 436]
To analyze the techniques and procedures for
manifesting unfair competition, we will subject
to analysis, the ways of committing the crime of
unfair competition that are exhaustively listed by
the legislator in art. 2461 of the Criminal Code.
The rst method of unfair competition is
provided for in letter a) art. 2461 Criminal Code
of the Republic of Moldova, is expressed in the
creation, by any means, of confusion with the
enterprise, with the products or with the industrial
or commercial activity of a competitor. We can
observe that this modality has its counterpart
in the one from subpt. 1) point 3 art. 10 of the
Paris Convention for the protection of industrial
property. It has no direct correspondent in the acts
of unfair competition, specied in the Competition
Law. [2, page 27]
633
This method of committing the oense of unfair
competition involves the use of an invention,
geographical indications, designations of origin,
guaranteed traditional specialties, a utility model,
drawing or industrial model, a topography of the
integral circuit, another means of individualization
of the products or the person of the perpetrator in
a way that confuses with those used legitimately
by another economic agent, as a victim of the
crime
But there is still a dierence between the
methods provided for in letters a) and d) of
art. 2461 of the Criminal Code of the Republic
of Moldova: in the case of the method specied
in letter d) art. 2461 of the Criminal Code of the
Republic of Moldova, confusing is the purpose
pursued by the perpetrator; in opposition, in
the case of the modality provided for in letter a)
art. 2461 of the Criminal Code of the Republic of
Moldova, the confusion must have materialized, it
must be created in the process of committing the
crime. Apart from this, the object of direct criminal
inuence diers: the enterprise, the products or
the industrial or commercial activity of the victim,
entities with which confusion is created (in the
case of the modality recorded in letter a) art. 2461
CP of the Republic of Moldova); the name of the
company or trade mark, used by the perpetrator in
a way that confuses with the one used legitimately
by the victim (in the case of the modality specied
in letter d) art. 2461 of the Criminal Code of the
Republic of Moldova).
At lit. a) of art. 2461 CP RM the legislator uses
the phrase “by any means”. We consider any
objects of the industrial property belonging to the
perpetrator, likely to create confusion, in such a
way as to create the impression that they designate
the enterprise, products or industrial or commercial
activity of the victim. As such objects of industrial
property, we understand, as mentioned in the
text above: inventions, designations of origin,
geographical indications, utility models, guaranteed
traditional specialties, industrial designs or models,
topographies of integrated circuits, new plant
varieties, etc. It is through such means that
confusion is created within the meaning of the
regulation from letter a) art. 2461 HP RM.
In the criminal doctrine, “confusion” means any
act by which a trader uses a company, an emblem,
a special designation or a packaging in such a way
as to create the belief that the activity is carried out
by the legitimate owner of the company, emblem,
special designation or the respective packaging,
without this corresponding to reality. [4, pg. 29]
Paraphrasing and adapting this denition to the
rigors of the provision from letter a) art. 2461 of
the Criminal Code of the Republic of Moldova, we
can mention that “confusion” must be understood
as the use by the perpetrator of an object of
industrial property (except for the company name
and the trademark) of such a nature as to create
the belief that the activity is carried out by the
victim economic agent, that is, the legitimate
owner of that object of industrial property, without
this corresponding to reality.[2, page 28]
Therefore, the rst method of committing the
crime of unfair competition, stipulated in letter a),
is embodied in the use of an invention, geographical
indication, appellation of origin, guaranteed
traditional specialty, a utility model, design or
industrial model, a means of individualizing the
products or the person of the perpetrator in a
manner that produces confusion with those used
legitimately by another economic agent, as a
victim of the crime. [3, page 437]
The second method of unfair competition,
provided for in letter b) art. 2461 of the Criminal
Code of the Republic of Moldova involves
spreading, in the course of trade, false statements
that discredit a competitor’s company, products or
entrepreneurial activity.
From the start we can mention that this
modality is similar to the unfair competition
modality specied in subsection 2) point 3 art. 10
of the Paris Convention for the Protection of Unfair
Competition. At the same time, this modality
is similar to the norm provided for in art. 15 of
the Competition Law, according to which: “It is
forbidden to discredit competitors, i.e. to defame
or endanger their reputation or credibility by:
a) the spreading by an enterprise of false
information about its activity, about its products,
intended to create a favorable situation for it in
relation to some competitors;
b) the spreading by an enterprise of false
statements about the activity of a competitor
or about its products, statements that harm the
activity of the competitor.”
We note that the article cited above provides
a detailed description of how competitors can be
discredited.
From the provision from letter b) art. 2461 of
the Criminal Code of the Republic of Moldova,
we deduce that to qualify an act as a crime of
unfair competition in the manner examined, it is
necessary to fulll the following conditions:
a) there is a discredit contained in the message
spreading false statements;
b) the spread of false statements to be made in
the process of trade;
c) the target of discrediting is the enterprise,
products or entrepreneurial activity of a competitor.
To analyze the rst condition, it is necessary
to clarify the term “discredit”. According to the
explanatory dictionary of the Romanian language,
discredit means: the action of discrediting, loss
of reputation, loss of inuence, consideration,
defamation, or compromise [14].
РОЗДІЛ VIІІ. КРИМІНАЛЬНЕ ПРАВО ТА КРИМІНОЛОГІЯ; КРИМІНАЛЬНО-ВИКОНАВЧЕ ПРАВО
634 Електронне наукове видання «Аналітично-порівняльне правознавство»
In the specialized literature it is shown
that discrediting is done through the following
statements:
– statements that harm the victim’s honor,
commercial reputation or economic situation (that
the opponent uses dubious business methods, that
he can no longer honor his commitments, that he
is on the verge of bankruptcy, etc.);
– statements that present the competing
company as carrying out a dangerous activity and
that its products are capable of causing serious
accidents;
– statements that dispute any professional
aptitude of a competitor;
– statements regarding the religion or race
of the competitor or its consumers, etc. [5,
page 284].
The statements given must be false, that is,
they have no real content, and their author is aware
that they do not correspond to reality. Likewise, the
statements must be “meant to”, that is, they must
be made to obtain a certain result: the creation
of a favorable situation, to the detriment of the
competitor. Under this aspect, V. Stati is right when
he states: “Discrediting the enterprise, products or
entrepreneurial activity of a competitor can have the
following harmful eects: the disruption of certain
management processes and traditions, of relations
with business partners; disorganization of the
structure, of the organizational climate, of strategic
planning; diverting from the intended goals and
tasks; reducing investment attractiveness, etc.” [6,
page 29]
Discredit must be distinguished from criticism.
In this plan, criticism is allowed if it is objective and
neutral and if it is not done to promote the interests
of the perpetrator at the expense of the interests of
the criticized competitor.
In another respect, discrediting must be
distinguished from information, as an expression of
the right to information, provided by art. 34 of the
Constitution.
We will take the example given by Sorin Timofei,
according to which: the information must be objective,
to ensure the transparency of the market. Information
is mainly provided in the form of commodity testing.
In order not to be assimilated to discredit, the testing
of goods must be done by independent, impartial,
highly qualied experts. And the published methods
and results must be accurate. [2, page 29]
The second condition, necessary for meeting the
composition of the oense of unfair competition in
the manner specied in letter b) art. 2461, resides in
the fact that the spread of false statements is made
in the course of trade.
Referring to trade activity, this is explained by the
Law on internal trade, no. 231 of 23.09.2010 [7],
where in art. 3 we also nd the notion of trade activity:
trader activity based on one or more forms of trade,
exercised separately or combined, participating in
the commercial circuit, through commercial units,
including by providing complementary commercial
services.
Thus, only within a commercial activity is it
possible to commit unfair competition in the manner
analyzed.
The third condition, necessary to restrain the
unfair competition in the manner recorded in letter
b) art. 2461 of the Criminal Code of the Republic of
Moldova, assumes that the target of discrediting is
the enterprise, products or entrepreneurial activity of
a competitor.
As for the discrediting of the enterprise, its
designation doesn’t need to be expressed. It can be
implicit, but suciently clear and transparent. In this
sense, the Romanian doctrinaire E. Mihai presents
the following example: during the period when there
was only one company that manufactured front-
wheel drive cars, it was considered that another car
manufacturer had discredited it, without naming it,
attracting potential buyers’ attention to the danger of
this type of traction [5, page 284].
Most of the time, the discrediting of the
company is inseparable from the discrediting of its
products and/or the entrepreneurial activity of the
competitor. In the given hypothesis, the data used
for discrediting refers to the professional training of
the sta, the managerial capacity of the company’s
management, the material situation of the company,
its reputation in the business environment, the
quality of the company’s products, etc. In all these
cases, it is necessary to be able to identify the victim
of the crime using the enterprise, the products or the
entrepreneurial activity that is being discredited. A
discredit of a general nature, addressed to economic
agents who cannot be identied, has no relevance in
terms of the application of liability based on letter b)
art. 2461 HP RM.
At the same time, it is required that this
information, i.e. the message through which the
discredit is brought, be brought to the attention
of the general public, this public being in fact the
consumers, either the existing ones or the potential
ones, through the use of mass communication means,
such as television, radio, print media, newspapers,
internet, street advertisements and other information
distribution channels.
The discredited message can be received by an
unlimited number of consumers. But, it is enough to
be addressed to a single person, having the quality
of a consumer. It will not be possible to apply the
liability based on letter b) art. 2461 CP RM, if the
message is addressed to persons who do not have
this quality, for example, when an economic agent
addresses it only to sellers in its own distribution
network [2, page 30-31]/
In another context, the third method of unfair
competition, specied in letter c) art. 2461 Criminal
635
Code of the Republic of Moldova, namely, misleading
the consumer regarding the nature, manufacturing
method, characteristics, suitability for use or quantity
of the competitor’s goods.
This modality shows anities with the one
provided for in subsection 3) point 3 art.10 of the
Paris Convention for the protection of industrial
property.
At the same time, we see obvious similarities with
the provisions of art. 18 of the Competition Law, which
regulates the diversion of the competitor’s clientele.
According to this article: “it is prohibited to divert the
competitor’s clientele by enterprises by misleading
the consumer regarding the nature, method and place
of manufacture, the main characteristics, including
the use, the quantity of the products, the price or the
method of calculating the price of the product.”
It should be mentioned that, before the entry into
force of art. 2461, art. 255 was applicable in the case
of misleading the consumer regarding the nature,
the manufacturing method, the characteristics, the
suitability for use or the quantity of the competitor’s
goods. In that situation, the following assertion
was valid: “Art. 255 “Deceiving customers” of
the Criminal Code can be applied in the case of
misleading regarding the consumer qualities and
the quality of the goods sold; thus, the client (aka
the consumer) is not informed (although it can and
must be communicated) that a product with other
consumer qualities or a dierent quality compared
to consumer qualities or the quality that are inherent
in the traded goods”. Moreover, not only misleading
the buyer regarding the consumer properties or the
quality of the goods qualies according to art. 255
Criminal Code of the RM. By extrapolation, the same
qualication operated in the hypothesis of misleading
the buyer regarding the character, manner and place
of manufacture, the utility of consumption, and the
quantity of the goods. The misrepresentation needed
to involve causing damage in essential or considerable
proportions (According to the criminal law in force, it
is required to cause damage in large proportions) [2,
page 31].
The current version of art. 255 of the Criminal
Code criminalizes only the deception of customers in
the part related to prices, and taris.
The means of misleading the consumer can be
very varied, depending on the characteristics of the
perpetrator. The ability of a means to mislead the
consumer depends on the concrete circumstances in
which it is used, as well as on the particularities of
the consumers. In any case, to qualify the act based
on letter c) art. 2461 of the Criminal Code of the
Republic of Moldova, it is enough to mislead a single
consumer.
The object of misleading the consumer must
be represented by nothing else than the nature,
the manufacturing method, the characteristics, the
suitability for use or the quantity of the competitor’s
goods.
Referring to the fourth method of unfair
competition, which is provided for in letter d)
art. 2461 of the Criminal Code of the Republic of
Moldova, this involves the use of the company name
or trademark in a manner that confuses with those
used legitimately by another economic agent.
We have not identied a prototype of this
modality in point 3 art. 10 of the Paris Convention
for the protection of industrial property, instead, this
form of committing the crime of unfair competition
is analogous to the provisions of art. 19 of the
Competition Law, according to which: “any actions or
facts are prohibited that are likely to create, by any
means, a confusion with the enterprise, products or
economic activity of a competitor, carried out by:
a) the illegal, full or partial use of a trademark,
service emblems, company names, an industrial
design or model or other objects of industrial property
likely to create confusion with those used legally by
another enterprise;
b) illegal copying of the shape, packaging and/
or external appearance of a company’s product and
placing the respective product on the market, illegal
copying of a company’s advertising, if this has or
may harm the legitimate interests of the competitor”.
First of all, the method specied in letter d)
art. 2461 of the Criminal Code of the Republic of
Moldova requires the use of the company name or
trademark. In this sense, it is useful to reproduce the
following denition from the specialized literature:
“use” means the use, the fraudulent use of an
identication element of a product that belongs to
or is marketed by another trader under the law [8,
page 560].
As for the use of the company name, it is
considered its use in the documents, invoices or
announcements emanating from the economic
agent, in advertising or prospectuses, on the trucks
that deliver the goods, etc. The reproduction of the
company name can be complete or partial. If the
reproduction of the company name is partial, then it
is mandatory to reproduce the essential part of the
company name.
We will subject to analysis the Decision of the
Plenary of the Competition Council no. CN-56 of
02.11.2017, which was based on the complaint of the
enterprise “Sevex-Prim” SRL, regarding the alleged
actions of unfair competition, carried out by the
enterprise “Buelo” LLC, in a form that indicates signs
of violation of the provisions of art. 19 para. (1) lit.
a) and lit. b) from the Competition Law. The actions
of unfair competition carried out by the enterprise
“Buelo” LCC are manifested by the fact of the partial
illegal use of the trademark with no. 17829, copying
the packaging and placing on the market corn stick
products, likely to create confusion with the plainti’s
products, as can be seen in the images below.
РОЗДІЛ VIІІ. КРИМІНАЛЬНЕ ПРАВО ТА КРИМІНОЛОГІЯ; КРИМІНАЛЬНО-ВИКОНАВЧЕ ПРАВО
636 Електронне наукове видання «Аналітично-порівняльне правознавство»
In fact, the company “Buelo” SRL copied
the packaging of the corn stick products
“CRISTINUȚA” and “CRISTINEL” for its corn stick
products “SĂNDUȚA” and “SĂNDEL”, and placed
these products on the market. In this case, the
Competition Council found a violation of the
provisions of art. 19 para. (1) lit. a) and lit. b)
from the Competition Law no. 183 of July 11, 2012
by “Buelo” LLC, namely: “the company “Buelo”
LLC took actions likely to create confusion with
“Sevex-Prim” LLC, with its products and economic
activity by partially illegally copying the packaging
for the product “CRISTINUȚA”, “CRISTINEL” corn
sticks for the products “SĂNDUȚA”, “SĂNDEL”
and placing them on the market, these actions
being able to harm the legitimate interests of the
plainti” [9].
Regarding the use of the trademark, in the
specialized literature it is claimed that it refers to
“the application of the trademark on products, on
packaging and/or as packaging, in advertising, in
printed matter, on ocial blankets, companies,
on the exhibits of exhibitions and fairs”. However,
through the lens of the corresponding regulations,
the notion of “use of the trademark” has a more
nuanced meaning. Thus, from para. (2) art. 9
of the Law on the Protection of Trademarks, it
follows that the analyzed notion presupposes two
assumptions:
1) application of the brand on products or
packaging, its use as packaging in the case of
three-dimensional brands;
2) use of the brand on business documents and
in advertising. [2, page 32]
Both of these hypotheses refer to the
following case from domestic practice initiated
at the request submitted by the economic agent
“Aquaphor” from the Russian Federation, the case
was investigated under the aspect of committing
unfair competition by the economic agent “Licaon-
Lux” from the Republic of Moldova, through
unauthorized use of the registered trademark and
company name “Aquaphor” on the packaging of its
products, as well as on the WEB page. As a result
of the examination of the respective case, it was
established that the economic agents “Aquaphor”
and “Licaon-Lux” are competitors on the market of
removable cartridges for water purication lters.
In order to market its products, the economic agent
“Licaon-Lux” uses its own packaging, dierent
from that of the competitor. At the same time, the
name “Aquaphor” is applied to the packaging in
question, to indicate that the cartridges produced
by “Licaon-Lux” are compatible with the lters
produced by “Aquaphor”. As a result of the analysis
of the case, the Administrative Council of the ANPC
(currently the Plenary of the Competition Council)
decided: the use of company names and brands
on products of the nature of being removable
parts, in order to indicate the destination of the
respective parts, their compatibility with the basic
products, not can be qualied as acts of unfair
competition.[10]
From the mentioned it appears that, for the
attestation of unfair competition in the manner
specied in letter d) art. 2461 CP RM, it is not
enough to use a company name or a trademark.
It is also necessary to fulll another condition: the
respective use must be in a manner that confuses
with those used by another economic agent.
The immaterial object of the unfair competition
oense can also be deduced from this.
In the context of the procedure provided for in
letter d), the provisions of art. 25 point 1 lit. a)
of the Law on Entrepreneurship and Enterprises,
no. 845 from 03.01.1992 [11], which regulates
that the company cannot use the company name
that: coincides or, as the state registration body
nds, resembles the company name of another
company, which is already registered.
The fth way of committing the criminal act
of unfair competition counts in: comparing for
advertising purposes the goods produced or sold
by an economic agent with the goods of other
economic agents.
There is no counterpart of this method among
the methods specied in point 3 art. 10 of the
Paris Convention for the protection of industrial
property, just as we have not identied an analog
in the Competition Law either.
In the opinion of E. Cojocari, the basic principles
of advertising activity are: the principle of loyalty,
honesty, authenticity and decency of advertising;
the principle of using forms, methods and means
that do not cause spiritual, moral or psychological
damage to advertising consumers; the principle
of fair competition; the principle of responsibility
towards consumers, society and the state [12,
page 45–55].
Thus, we consider that the principles enunciated
above are violated in the manner of committing
the crime of unfair competition provided for in
637
letter e) of art. 2461 of the Criminal Code of the
Republic of Moldova.
It is relevant to mention here the provisions
of art. 9, paragraph (1) letter b) of the Law on
advertising, no. 1227 of 27.06.1997 [13], which
regulates that dishonest advertising “contains
incorrect comparisons of the advertised goods with
similar goods of another economic agent, as well as
statements or images that harm the honor, dignity
or professional reputation of the competitor or the
reputation professional of the competitor”
Comparative advertising, as an expression of
unfair competition in the manner specied in letter
e) art. 2461 of the Criminal Code of the Republic
of Moldova, always involves a comparison of:
the prices of competitors’ goods; the quality of
competitors’ goods; of the form of distribution of
competitors’ goods; of after-sales services oered
by competitors, etc.
Apart from the ways of committing the crime of
unfair competition expressly provided for in letter
a) – e) art. 2461, others complete the content of
the prejudicial act provided for in art. 2461, these
being the modalities provided in art. 16 and art. 17
of the Competition Law.
Thus, according to art. 16 of the Competition
Law: “ it is prohibited to instigate, in the interest
or in the interest of third parties, the unjustied
termination of the contract with the competitor
of another company, the failure to fulll or the
improper fulllment of the contractual obligations
towards the respective competitor by granting
or oering, mediated or directly, of material
rewards, compensations or other advantages to
the company party to the contract.”
According to art. 17 of the Competition Law, it
prohibits the obtaining and/or use by an enterprise
of the information that constitutes the competitor’s
trade secret, without his consent, if they have
brought or may harm the legitimate interests
of the competitor. These facts are criminalized
under art. 24510 of the Criminal Code RM. Art. 107
para. (1) of the Contravention Code provides for
liability for obtaining without the owner’s consent
the information that constitutes a trade secret for
the purpose of their illegal disclosure or use.
Therefore, as the criminalist V. Stati mentions,
in the situation of obtaining and/or using by an
enterprise the information that constitutes the
competitor’s trade secret, without his consent, if
they have brought or may harm the competitor’s
legitimate interests, art. 2461 can be applied only
if neither art. 24510, nor para. (1) art. 107 or para.
(5) art. 3042 of the Criminal Code.
In conclusion, 1) the legislation in the eld
of competition was inspired by the provisions of
the international acts to which the Republic of
Moldova is a party, thus the Moldovan legislator
connected the national domestic legislation to the
international legislation pursuing several goals,
among which:
- First of all, to ensure compliance with the
constitutional principles that govern the conduct
of economic activity under the conditions of the
market economy;
- Secondly, to ensure the protection of
fair competition in its capacity as an instrument
or means of increasing economic eciency and
development of the national economy. In this
context, the legislator adopted both competition
legislation and instituted legal liability, including
criminal liability, for acts that threaten the
development and promotion of fair competition in
the economic activity of economic subjects, the
rights of bona de competitors and consumers.
2) The analysis of the provisions of art. 2461
and the provisions of art. 15–19 of the competition
law, it is easy to deduce that practically all the
normative ways of the crime of unfair competition
are contained in the competition law, except for
the provision from letter e) art. 2461, most of
the normative modalities having correspondence
with the provisions of the Paris Convention for
the protection of industrial property. And vice
versa, certain provisions of the aforementioned
Convention were not reected in the competition
legislation of the Republic of Moldova.
3) Another conclusion drawn is the one
regarding confusion: the production/creation of
confusion constitutes the purpose pursued by
the perpetrator in the case of the modality from
letter d) art. 2461 CP ( creating, by any means,
confusion with the enterprise, with the products
or with the industrial or commercial activity of a
competitor), while, in the case of letter a) art. 2461
of the Criminal Code - confusion is created in
the process of committing the crime ( use of
the company name or trademark in a way that
confuses with those used legitimately by another
economic agent).
4) The oense of unfair competition targets
both natural persons (consumers/customers)
and legal persons (economic agents: producers,
traders, etc.) as passive subjects.
The general conclusion that emerges from
our analysis is that the norm from art. 2461 of the
Criminal Code of the Republic of Moldova is not
without some shortcomings such as the clarity of
the norm, predictability, the lack of consistency
of the legislator in terms of the use of terms and
expressions (to which I have drawn the attention
in the text above), as well as the need to operate
some legislative changes and adjustments.
Certain proposals in the sense of reshaping
the created situation will be the subject of further
research. Using the company name or trademark
in a manner that confuses with those used
legitimately by another economic agent.
РОЗДІЛ VIІІ. КРИМІНАЛЬНЕ ПРАВО ТА КРИМІНОЛОГІЯ; КРИМІНАЛЬНО-ВИКОНАВЧЕ ПРАВО
638
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Електронне наукове видання «Аналітично-порівняльне правознавство»