JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
cartel impedes competition in the Japanese market. 6.4 Abuse of Dominant Position Certain types of unilateral conduct and eco - nomic dependency are prohibited as private monopolisation and unfair trade practices under the Antimonopoly Act. Private monopolisation is defined as any con - duct that excludes or controls the business activities of other enterprises, thereby caus - ing a substantial restraint of competition in any relevant market. The methods of enforcement against private monopolisation include: • cease-and-desist orders; • surcharge payment orders; and • criminal punishment. Various types of conduct are designated as unfair trade practices, such as: • refusal to trade; • unjustly low-priced sales; • resale price restrictions; and • abuse of superior bargaining positions. Under economic dependency regulations, abuse of superior bargaining positions is the major type of misconduct to be considered, and enterprises are prohibited from imposing terms and condi - tions that are disadvantageous to other enter - prises by unjustly leveraging their superior posi - tion over other enterprises. All types of unfair trade practices can be sub - ject to cease-and-desist orders. However, the surcharge payment order and/or criminal penal - ties are only applicable to certain types of unfair trade practices.
For conduct to be considered as private monop - olisation, it is necessary to prove that it results in a substantial restraint of competition. On the other hand, a tendency to impede competition is all that is required for conduct to fall within the scope of unfair trade practices. In other words, it can be said that a higher threshold (regarding detrimental effect) needs to be satisfied in order to show the existence of private monopolisation, in comparison to unfair trade practices. Although extraterritorial applicability of regula - tions on private monopolisation and unfair trade practices is not such a prominent topic of discus - sion, it nevertheless appears the same approach is taken towards unreasonable restraint of trade as is likely to be taken in relation to private monopolisation. The commitment procedure, which is a scheme for voluntarily resolving suspected violations via mutual consent between the JFTC and the rel - evant enterprise, came into effect in December 2018. As of May 2025, 21 cases regarding pri - vate monopolisation and unfair trade practices have been resolved through the commitment procedure.
7. Intellectual Property 7.1 Patents
The Intellectual Property Basic Act of Japan rec - ognises the importance of IP protection as well as the idea of creating a vibrant economy and society by creating new IP. In Japan, IP is mainly protected by: • the Patent Act;
• the Utility Model Act; • the Trademark Act; • the Design Act;
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