Yaponiyaning MEXT grantini yutgan talaba hujjatlaridan namunalar – Field of Study and Study Program (Research Proposal)

OGOHLANTIRISH!
Quyida keltirilgan hujjatlar muallifi mazkur hujjatlarni 2017-yil Yaponiyaning O’zbekistondagi elchixonasiga topshirgan va MEXT dasturi bo’yicha magistraturada o’qish uchun grant yutib olgan. Hujjatlardan nusxa olib foydalanishingiz, o’z nomingizdan turli ta’lim dasturlariga topshirishingiz plagiat tekshiruvi orqali aniqlansa, Siz hujjat topshirgan dasturlar Sizni bevosita dasturda qatnashishdan chetlatishga sabab bo’ladi.

Bundan tashqari, MEXT grantiga nomzodlar ushbu hujjatni xuddi shu shaklda yozishi tavsiya etilmaydi. Ko’pchilik hujjatlarning bir xil shaklda ekanligi ularning boshqasidan ko’chirilganligi haqida shubha tug’ilishiga olib keladi. Muallif xohishiga koʻra, uning shaxsiy maʼlumotlari keltirilmadi.

Ushbu hujjat muallifning roziligi asosida saytga joylandi.

1. Present field of study（現在の専攻分野）

I had become really interested in the sphere of competition law after having participated in some trials related to unfair competition of Samarkand economic court where I did my first legal internship in the summer of 2013. After that, I always tried to learn this sphere both theoretically and practically. For example, I have done all my compulsory internships (once in every academic year) during the whole university time in some state organs which is relevant to this sphere such as economic courts and the State competition committee. In addition, in the first semester of my fourth academic year, fortunately, I was taught competition law by one of the most knowledgeable and professional teachers of TSUL. After having been discussed with my supervisor at university, my topic for graduation qualification paper was decided as “Legal aspects of unfair competition prevention”.

The two laws “On competition”[1](2012) and “On trademarks, service marks and place names of origin of goods”[2] (2001) as well as the Civil code (1997) of the Republic of Uzbekistan were the basic normative acts of my research work. In order to conduct a research on unfair competition prevention I had to address several law textbooks. The textbook by O.Oqyulov, K.E.Mansurov and B.K.Khodjayev[3] is the main theoretical base of competition law in Uzbekistan which only gives readers a general idea of what unfair competition and it’s measures are. There are some former graduates of TSUL who are researching this sphere in Japan. Azamat Shakirov (Osaka university), Husain Rajabov (Kobe university) and Bakhshillo Khodjayev (Nagoya university) are conducting their researches in different spheres of competition law, while Mirshod Kuchkorov (Waseda university) is studying and researching IP law. However, the field of unfair competition prevention in Uzbekistan is not researched by anyone yet.

The legal description of unfair competition is given in Article 4 of the Law “On competition”: “Unfair competition – action of an undertaking directed on gaining advantages in an enterprise activity, which contradicts the legislation and norms of a business conduct, limits competitiveness among the undertakings and gives an opportunity to an undertaking, who is carrying out such actions, to influence on the general conditions of the goods’ circulation in the appropriate markets.” In addition, the types of unfair competition in Uzbekistan are adopted by the Article 13 of the same Law: Unfair competition is prohibited and it includes:

• incorrect comparisons that could cause losses to another business entity or damage its business reputation. An incorrect comparison is the comparison of the goods of an economic entity with another item of another economic entity (competitor) by using words or designations that give an impression of the superiority of the goods without specifying characteristics or comparing parameters which have objective confirmation, or cases where statements containing shown words or designations are false, inaccurate or distorted;
• the sale of goods with the illegal use of the results of intellectual activity and the means of individualization of a legal entity that are equivalent to them, means of individualizing the goods, including the sale of goods with the illegal use of a designation identical with the trademark, the business name of the economic entity (competitor) or a confusingly similar one by placing it on goods, labels, packages or using trademark in relation to goods that are sold or imported to the civil circulation, as well as through its illegal use in the domain name;
• misleading consumers regarding the nature, method and place of production, consumer features of the goods, the price, the quality of the goods, the manufacturer’s (executor’s) guarantee obligations, the imitation of goods brought into civil circulation by the economic entity (competitor), by copying the external design of the product and its form, name, marking, label, packaging, color, trademark, advertising materials or other elements that individualize the goods of an economic entity;
• reception, use, disclosure of the scientific and technical, industrial or trade information, including trade secret, without the consent of its owner;
• creating barriers to the market of goods and services to the new undertaking.

Two of five abovementioned types of unfair competition will be composed in my research as it is related to individualization means. It is noteworthy that after being independent from the USSR, the Government of Uzbekistan has made a huge step towards enhancing unfair competition regulation. After adopting different normative acts, the legal basis of this sphere has been developed considerably and necessary improvements are being made constantly. For example, there was adopted new Law “On amendments and additions to some legislative acts of the Republic of Uzbekistan” (18.04.2017) which resulted in considerable progress in the sphere of unfair competition. According to this normative act, there were some amendments to Article 13 of the law “On competition” (2012) which broadened the scope of unfair competition significantly. In addition, there were several amendments and additions to the law “On trademarks, service marks and place names of origin of goods” which enhanced the legal basis of unfair competition prevention by adding extra methods of proving the use of unregistered trademark. Abovementioned new law has brought great improvement and changes (some of them were given in my graduation qualification paper) to the sphere of unfair competition prevention which is impossible to define in this paper. Even though, the Government of the Republic of Uzbekistan is making step-by-step and constant progress in modifying the legislation system of unfair competition prevention, however, there are still several solid and topical problems which will be discussed in the next questions.

[1] The Law of the Republic of Uzbekistan “On competition”, “Xalk suzi” newspapaer (07.012012) or www.lex.uz

[2] The Law of the Republic of Uzbekistan “On trademarks, service marks and place names of origin of goods”, Statements of the Oliy Majlis of the Republic of Uzbekistan, 2001 year, № 9-10;

[3] О.Оқюлов, К.Э.Мансуров, Б.К.Ходжаев, Рақобат ҳуқуқи. Ўқув қўлланма. –Т.: ТДЮИ нашриёти, 2007. – 156 бет.

2. Your research topic in Japan: Describe articulately the research you wish to carry out in Japan.
（渡日後の研究テーマ：日本においてどういった研究がしたいかを明確に記入すること）

“Unfair competition prevention in terms of individualization means (firm names, trademarks and service marks): Comparative analysis of legal approaches in Uzbekistan and Japan”

Currently, discussions regarding the unfair competition in terms of individualization means are getting more relevant in Uzbekistan. While pursuing my Master’s at Japanese university, I will mainly focus on this issue since successful reforms in the field of unfair competition prevention law in terms of individualization means are important for the economy and legal system of Uzbekistan. Besides that, after conducting profound research for a long time and working hard on my graduation paper on the topic of “Legal aspects of unfair competition prevention” made me conclude that unfair competition prevention is not well studied in Uzbekistan and, consequently, has a lot of problems. As a result of this and by basing on my personal interest, I decided to do my master’s research in this sphere of law. During my research, I also realized that it was impossible to reach effective results with my topic since it had quite broad scope for the research paper. So I made a decision to continue my research in the same field of study of my final graduation paper through making my topic more specific.

Why did I choose this topic (Problem statement)?

In my opinion, my research topic for graduation paper is quite relevant for a number of reasons and problems. First of all, the scientific – theoretical actuality of the topic is that the legal aspects of unfair competition prevention in terms of individualization means has not been learned and studied by researchers so far and there are no exact proposals for effective working system in this legal sphere of Uzbekistan. As a result, though unfair competition cases are quite developed and happen often, there is no comprehensive legal basis in this sphere. Currently, many countries have their exact legal act devoted to unfair competition prevention. When it comes to Uzbekistan, it has only the law “On competition” (2012) which defines solely the description of unfair competition and types of it, but nothing related to this sphere. The legal responsibility, different types of legal liabilities and other aspects of unfair competition prevention are not described in this law. There are only five types of unfair competition given in this law (two of them applies to individualization means) while more than 10 actions are considered as an unfair competition in many countries. This is one of the main reasons for weakening the prevention of unfair competition.

Secondly, the legislation of the Republic of Uzbekistan does not have the legal basis for the process of compensation for damages caused by unfair competition. “A person illegally using a trademark shall be liable to  terminate violation  and  compensate  losses  caused  by  him  to  the  owner of the trademark[1]”. This is the material law of remedies, but there are not procedural legal act in the legal system for this action. Therefore, a person whose business interests have been infringed by unfair competition has a right to ask for remedies, but it is not easy to get compensation for damages incurred due to the lack of specific provisions on calculation of the amount of such compensation. During my research for graduation qualification paper in TSUL, I have studied and analyzed more than 50 legal cases of the Tashkent economic court and could not find any decision by the court with the approval of compensation for damages caused by unfair competition. Most of the claimers did not even ask for the compensation because of the loophole in this situation. Some of them calculated the damage depending on general tort law rules of the Civil Code, however, judges could not even dare to satisfy those part of claims. For instance, we can take the case[2] between “Societe de produits Nestle S.A.” and “Family Group” as an example which were dealt by Tashkent city economic court (final trial date: 24.05.2016). “Societe de produits Nestle S.A.” asked the court for injunction and compensation for damages, but only injunction was satisfied. If we analyze the scope of these companies, it can be clearly understood that the amount of damage is quite high.

Thirdly, there is no direct administrative and criminal liability for unfair competition in terms of individualization means which is one of the biggest loopholes in this field. It is true that there are some articles for criminal and administrative liabilities of illegal competitive actions, but they are too vague and not directly relevant to the infringement of individualization means. It results in increasing the number of unfair business practices by individualization means because of repetition such practices by the same offenders. We can take as an example the case[3] on unfair competition for illegal trademark use between “Pernod Ricard Mexico, S.A. De C.V.” and “Far-Vab” from Tashkent territorial department of the State competition committee. “Pernod Ricard Mexico, S.A. De C.V.” asked for injunction in its claim from the SCC and, of course, it was satisfied. The SCC burdens “Far-Vab” to stop illegal action of unfair competition towards “Pernod Ricard Mexico, S.A. De C.V.”. Interesting point about “Far-Vab” is that this company often repeats this type of illegal act towards many other competitors. In my opinion, this condition is the result of current legislative system which does not have effective, powerful and clear administrative as well as criminal liability for unfair competition in terms of individualization means. This situation reaffirms once more the actuality of the topic in the viewpoint of legislation and demands a complex research work in order to give one structural legal solution for this problem;

Finally, during my internships in the State competition committee, Intellectual property agency and economic courts, I have noticed great problem of unprofessionalism. To begin with, there is only one lawyer in the commission of the SCC who is in charge of dealing with legal cases. Frequently, the final decision of this commission is not based on legal norms, but some laughter reasons such as having low price and being local business entity for winning the case. I think legal cases should be based solely on law, but not other factors in order to provide the rule of law in the country. In addition, from the analysis of the available legal cases it can be clearly seen that IPA is not working properly. Considerable number of disputes was triggered because of the mistake made by IPA. The workers of this place either don’t know their job or just don’t want to reject their clients who came to register any individualization means. There are really a lot of cases in which IPA did not reject of the business entity’s request for registration despite the fact that it did not suit the requirements of the law. Therefore, different unfair business practices were established as a result of IPA’s wrong action. I think there should be certain requirements and specific responsibilities set for IPA workers. Finally, not all of the judges of the economic courts are professional and skillful in this sphere. Absolutely opposite decisions made in the same cases are commonplace in the current judicial practice. I suppose it is because of the lack of the Commentary of the Supreme Court of the Republic of Uzbekistan. I would say that if only these practical problems were solved, it would contribute significantly to the progress of unfair competition prevention field.

Why am I going to do my research in Japan?

There are several reasons for conducting my research exactly in Japan, so I am going to count them one by one:

1. Japan’s legal system is one of the brilliant legal systems of the world which has some aspects of common law while being civil law originally. This country has amazingly low rate of illegal acts in any sphere which is also one of the great advantages of Japan for doing a legal research.
2. Japan has very unique system of prevention of unfair competition which is regulated by specific law in this sphere. When I learned Unfair Competition Prevention Act[4] of Japan, I understood that every single detail of this sphere was regulated effectively by this law. Consequently, I decided to learn the sphere of unfair competition prevention of Japan as much as possible in order to make contribution the legislation system of my motherland.
3. It is undeniable fact that Japan also learned and implemented a lot of things from other developed countries depending on the cultural and historical aspects. In my opinion, it is more logical to learn legislation improvements for our country from the country which has done the same thing before and, of course, Japan is a good example for this factor also.
4. Both Japan and Uzbekistan are considered Asian countries which is quite important and fundamental while learning and implementing some legal improvements and developments. Since both countries share a lot of cultural and mentality aspects of society, it is easier to implement something from each other for these two countries.
5. I would say that Japan is the most developed country both economically and legally among civil law countries. Uzbekistan is also considered civil law country, since it became independent from USSR just 26 years ago. Considering this fact, I can say without any doubt that Japan is the most suitable country for me to do a research in it.
6. Finally, I chose Japan from my personal reasons which are almost uncountable. From my early childhood, I was interested in Japan and its culture. I have done the national sport Japan – Judo for 6 years and made considerable results in the championships of Uzbekistan and I became a Candidate to Master Sports of Judo. After entering the university I was able to study Japanese language and some other courses of Japanese studies (Japanese history, Japanese society, Japanese legal system and etcetera). Then I could get a MEXT scholarship of Japanese Studies Students during my second academic year. My one-year-study was extremely useful and productive for my future plans and it has changed my life completely for the goodness. After coming back to Uzbekistan, I have realized the contribution of this scholarship to my personal and academic skills. I always tried to teach all the aspects of Japanese society and government structure which I could learn during my journey. As everybody was eager to listen to my stories about Japan, it gave me more energy and motivation on learning more about Japanese legal system. Almost in all courses, I was given a chance and obligation at the same time to do a comparative analysis of Japan and Uzbekistan in that subject and make a presentation for my group or faculty members. Moreover, I have worked as a volunteer teacher of Japanese language in different places to anyone who wanted to study this type of language. In summary, I would say that I am Japanese-Uzbek man (people say this) from my personal character and worldview. That is why Japan is the only country where I must go for my research and study. As a result of those abovementioned factors, I can’t imagine doing my research in any other country.

[1] The Civil code of the Republic of Uzbekistan, (01.03.1997), article 1107. www.lex.uz

[2] Materials from Tashkent city economic courts for 2016, Case number: 10-1610/9935 10-0418/10357-сонли иш.

[3] Materials of Tashkent territorial department of the SCC for 2016 year, Case number – 09/04

[4] Unfair Competition Prevention Act of Japan, (Act No. 47 of May 19, 1993),   www.japaneselawtranslation.go.jp

3. Study program in Japan: (Describe in detail and with specifics — particularly concerning the ultimate goal(s) of your research in Japan) （研究計画：詳細かつ具体に記入し、特に研究の最終目標について具体的に記入すること。）

The aim of my study is to find the mechanisms to solve existing problems in the field of unfair competition prevention in terms of individualization means by comparing and analyzing current legislations of Uzbekistan and Japan. Though the abovementioned ideas are relatively rough, I believe that the Master Degree Program in Japan will give me a chance to get acquainted with the Japanese legal practical and theoretical achievements in this sphere. I am confident that my knowledge obtained in Japan will be of high value, and upon arrival to my home country, I will try to use it in implementation of the Japanese experience in the domain of unfair competition prevention in a way applicable for Uzbekistan.

Research plan (proposal):

• In the first semester, I am going to study and learn the whole legislation system of my field in Japan;
• In the second semester, I am planning to make some comparative analysis of Uzbekistan and Japan through basing on my knowledge which I learnt in the first semester and analyze problems of my research with the help of this analysis;
• In the third semester, I am going to analyze the reasons of the problems of my research and learn some aspects of Japanese legislation which can be applied to them;
• In the fourth and final semester, I am planning to reorganize all of the knowledge and information which I learnt and analyzed during my studies. Besides that, I will finish my research work and defend it.

Ultimate goals:

1. To be able to analyze problems objectively with the help of comparative profound knowledge of Japan and Uzbekistan in the sphere of competition law;
2. To be able to provide efficient proposals which are able to solve problems of my research;
3. To publish article in Uzbekistan, Japan and other countries. To study and compare legal basis of unfair competition prevention between Japan and Uzbekistan during the first three months;
4. To conduct research interview with scholars on solving the problems about unfair competition practices of Uzbekistan in terms of individualization means between January 2015 and March 2015;
5. To write comparative articles relating to my topic from September 2015 to December 2015;