Essence and Extension: When does the Use of Trade Secrets Constitute the Abuse of Market Dominance in China and How Should the Current Approach be Improved?

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Copyright: Wu, Peicheng
This Thesis examines the situations in which the use of trade secrets can constitute an abuse of market dominance under China’s Anti-monopoly Law and considers how the law should be applied in practice. It is generally accepted that competition law and intellectual property law have the complementary goals of promoting competition. Trade secrets are regarded as a category of intellectual property and competition law applies when the exploitation of trade secrets leads to anti-competitive effects. There are some cases where Chinese competition authorities and courts have dealt with the abuse of dominance cases arising from the use of trade secrets, but the Thesis argues that the existing Chinese competition rules should be more specific in relation to the issue. In order to improve Chinese competition enforcement in this respect, the Thesis examines comparative competition experience from both sides of the Atlantic to analyse market definition, market dominance and some abusive practices with regard to trade secrets. It makes recommendations on an appropriate methodology for China. To keep a balance between the antitrust intervention and the use of trade secrets, and to make the application of Chinese competition law predictable, the Thesis recommends reforming Chinese competition rules to establish specific tests for determining the abuse of dominance in trade secrets. It suggests that China should consider the characteristics of trade secrets (as opposed to other forms of intellectual property) in the abuse of dominance cases when amending China’s anti-monopoly guidelines regarding intellectual property. These recommendations, if adopted, would provide Chinese competition authorities and courts with more specific guidance on dealing with the interplay between competition law and the exploitation of trade secrets in the future, and improve the enforcement of Chinese competition law in the area.
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PhD Doctorate
UNSW Faculty
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