- The Government of Macau has established general provisions that set out the basic elements of a competitive policy, within its 1999 Commerce Code, titled “Regulation of Competition Among Entrepreneurs”.
- The Commercial Code, in Article 153 establishes that competition should be carried out in a manner that does not harm the interests of the economy of Macau SAR and within the limits established by the law. A number of succeeding articles in the Code provide some indication as to the forms of conduct that would be detrimental to competition and are therefore prohibited.
- As such the Government has established the basis for a formalized competition policy and given indications as to what the Government’s intentions are with regard to commercial practices that can distort the proper functioning of markets and therefore impede economic prosperity.
- The following prohibited conduct of unfair competition also applies to intellectual property protection:
- Any acts likely to cause confusion in respect to the goods, services or credit of competitors.
- Fraudulent advertising, false descriptions and misleading information about the nature, quality or use of the goods and services that can deceive consumers concerning the place of origin, property of company.
- False declarations made in the course of trade, industry, or services with the intention of discrediting the goods, services, or reputation of competitors. Namely, by mentioning their nationality, private life, religious beliefs and ideological convictions or any other personal information.
- Imitation or reproduction of goods or services that may cause a risk of association in the mind of the consumer with the intention of obtaining personal benefit arising from the credit or reputation of the company name, brand, product or service belonging to a third party.
- A trade secret is considered to be any technical or commercial information of practical use, that is able to benefit the owner economically, that is not known to the public and all precautions have been taken by the owner to keep it confidential.
- It is considered unfair disclosure or exploitation whenever industrial or other trade secrets, which have been accessed legitimately but subject to confidentiality, are divulged or exploited without the authorization of the owner, or if such trade secrets were obtained illegitimately, namely as a result of the above-mentioned conduct.
(Commercial Code-articles 153-173)
Article 156 (Objective scope)
Article 157 (Subjective scope)
Article 158 (General clause)
Article 159 (Acts of confusion))
Article 160 (Acts of deception)
Article 161 (Offers)
Article 162 (Slanderous acts)
Article 163 (Acts of comparison)
Article 164 (Acts of imitation)
Article 165 (Exploitation of the reputation of others)
Article 166 (Disclosure of secrets)
Article 167 (Contract violations, benefits and promotions)
Article 168 (Exploitation of dependents)
Article 169 (Sales at a loss)
Article 170 (Unfair competition litigation)
Article 171 (Sentencing)
Article 172 (Damages)
Article 173 (Legitimacy of entities representing groups)
Regulation of Competition Among Entrepreneurs
1) The competition among entrepreneurs must be carried out in a way that does not damage the interests of the economy of Macau and within the limitations of the law.
2) All agreements and practices that have the objective and/or are effective in distorting or restraining competition are prohibited, without prejudice to other special provisions.
1) A contract defining the limitations in the competition among entrepreneurs shall, under penalty of nullity, respect the limits indicated in the previous article and be made in writing.
2) To ensure that the contract is valid, it is necessary that it is limited to a certain area or specific activity.
3) If the duration of the contract is not fixed, or is fixed for a longer period, the validity can only be five years.
(Obligation of Contract)
The enterprise that operates under the conditions of a legal monopoly has the obligation of executing a contract with anyone who requires the services of the enterprise, while observing the principles of equality.
1) The conduct mentioned in this chapter is considered unfair if practiced in the market for the purpose of competition.
2) It is presumed that an action is practiced with the purpose of competition when, the circumstances in which it is carried out, are objectively suitable for promoting and securing the distribution of products or services in the market of the relevant party or of a third party.
1) The rules of unfair competition apply to entrepreneurs and to all those who operate in the market.
2) The rules of unfair competition apply to all operating in the market independently of engaging or not in the same field of activity.
Unfair competition is any act of competition that is objectively contrary to the norms and fair commercial practices.
(Acts of Confusion)
1) An act is considered as unfair if it is likely to create confusion with an enterprise, the products, the services or the reputation of competitors.
2) The risk of association by the consumers, on the product or service source, is sufficient to justify the unfairness of a practice.
It is considered unfair the use of, or the spreading of, incorrect or false information or the omission of true facts and any act that, per the circumstances in which it takes place, is likely to mislead about the nature, ability, quality, quantity, and actual benefits of the products or services provided.
1) Offers made for the purpose of advertising and similar commercial practices are considered unfair if the circumstances in which they are carried out place the consumers in a situation where they are obliged to purchase the service for which the offer has been extended.
2) Any type of benefit or prize offered to the consumer on the purchase of a provided service is considered unfair if anything causes or may cause misunderstandings about the prices of other products or services from the same enterprise, as well as when it is difficult for the consumer to assess the actual value of the offer or to compare it with alternative offers.
1) It is considered unfair when the use or the spreading of information about an enterprise, the products, services or commercial relationships among competitors will negatively affect the respective reputation in the market, unless such statements are exact, true and pertinent.
2) Statements on the nationality, the religious or ideological beliefs, the private life or any other exclusively personal circumstances of any individual are not considered pertinent.
(Acts of Comparison)
1) The public comparison of an enterprise, its products or services with those of a competitor is considered unfair if it relates to realities that are not analogous, relevant or ascertainable.
2) The comparison shall also be considered unfair if it is made in the terms indicated in articles 160 and 162.
(Acts of Imitation)
1) The imitation of products, services, and business initiatives is unrestricted, unless they are protected by a legally recognized exclusive right.
2) The imitation of the product or service of a third person is considered unfair when it is capable of causing the consumer to associate it with the relevant product or service of a competitor, or when there is a possibility that the reputation of third parties can be exploited or damaged.
3) If the above associations or exploitations are inevitable the practice is not considered to be unfair.
4) Without prejudice to the previous paragraph, the systematic imitation of the products, services and entrepreneurial initiatives of a competitor is considered unlawful if the said strategy is directly aimed at hindering or obstructing its affirmation in the market and exceeds what, according to the circumstances, may be considered a natural response from the market.
(Exploitation of Third Parties’ Reputation)
Improper exploitation of the entrepreneurial reputation of another person, to one’s own benefit, or to a third party’s, is considered unfair.
1) It is considered unfair disclosure or exploitation whenever industrial or other trade secrets, although subject to confidentiality, have been accessed legitimately but are divulged or exploited without the authorization of the owner, or if such trade secrets were obtained illegitimately, namely as a result of any of the actions set out in the following article.
2) For the purposes of this article, it is considered trade secret all and any technical or commercial information that has practical use and provides economic benefits to the holder, which is not public knowledge, and for which the holder has taken appropriate security measures to ensure its confidentiality.
(Promotion and Exploitation of Contractual Breaches)
1) It is considered unfair to induce employees, suppliers, clients and other obliged parties to the breach of contractual obligations entered into with competitors.
2) Promoting the regular termination of a contract or the use of another’s contractual breach, as long as known, for personal or third parties’ benefit, is considered unfair when they concern the dissemination or exploitation of a trade secret or are accompanied by such circumstances as deceit, the purpose of taking out a competitor from the market, or any other similar practices.
(Exploitation of Dependency)
It is considered unfair the undue exploitation by an entrepreneur of a situation of dependence with economic repercussions, in which the entrepreneurs who are its clients or suppliers may find themselves, who have no equivalent alternative for the exercise of their activity.
(Sales at a Loss)
Sales effected below the cost or acquisition price are considered unfair, when part of a strategy with the purpose of eliminating a competitor or group of competitors from the market.
(Unfair Competition Litigation)
Legal action against unfair competition can be taken within one year from the date when the plaintiff becomes aware or may have become aware of the facts that constitute the grounds for litigation, but no later than three years after the event.
A judicial decision declaring the existence of acts of unfair competition shall determine the prohibition of the pursuing of the said practice, and shall indicate the appropriate means to eliminate the respective effects.
1) Whether the practice of unfair competition was carried out purposely or accidentally, the perpetrator is liable for the compensation of any damage caused.
2) In the case mentioned in the aforesaid paragraph, publication of the court decision might be ordered.
3) If the existence of acts of unfair competition is proven, guilt is presumed.
(Legitimacy of the Interested Parties’ Representatives)
When the acts of unfair competition adversely affects the interests of a certain group of interested parties, an action for unfair competition may be also brought by the entities representing the said group.
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