Unfair Competition Flashcards
Different legal approaches towards unfair competition
Specific laws or provisions on repression unfair competition
General tort law or law against passing off and special laws on trade secrets, advertising and consumer protection
Mixed approach
Unfair competition act
Committed in relation with a commercial activity
The commercial conduct must be recognised as unfair
How to define unfair competition?
Consists of some activities of entrepreneurs which at least must be related to commercial activity and are unfair in the meaning that they are considered as unacceptable giving some standard of fairness
UK approach against unfair competition is built on
- economic torts: passing off and malicious falsehood
- consumer protection statutes
- strong role of self-regulation, in particular as regards advertising practice
Tort of passing off
Goodwill, misrepresentation, damage
L’Oréal/Bellure-decision
the ECJ ruled on the meaning
of taking unfair advantage of the reputation of a trademark in article 5 (2) of the European
Trademark Directive 89/1047 in a case on smell-a-likes. Taking unfair advantage without any element
of deception could be clearly equalized with misappropriation.
In Germany, for systematic reasons separate laws were adopted to prevent unfair competitive
activity
Sec 3 UWG three general criteria: “acts of competition”, “unfairness” and
“more than an insubstantial impact on competition”
There is yet no European unfair competition law in the sense of one uniform and comprehensive
legislative system.
European primary law still maintains an influence
Directive 2006/114/EC concerning misleading and comparative advertising
protect traders against misleading advertising from other businesses (i.e. B2B), which is
equivalent to an unfair commercial practice
Directive 2006/114/EC criteria of what constitutes as misleading
the characteristics of the goods or services (availability, nature or composition, method of
manufacture or provision, origin, etc.), the results to be expected from their use, and the
results of quality checks carried;
the price or the manner in which the price is calculated;
the conditions governing the supply of the goods or services; the nature, qualities and rights
of the advertiser (identity and assets, qualifications, intellectual property rights, etc.)
Non-harmonised areas of UC law
- Denigration / trade libel
- Protection of goodwill outside TM law and comparative advertising
- Imitation of products and services outside IP law
- Interference with a competitor‘s business
- Interference with contractual relations
- Infringement of a statutory provision
Unfair Commercial Practices Directive (UPCD)
Most comprehensive. Unfair commercial practices
are those which: are contrary to the requirements of professional diligence and; are likely to
materially distort the economic behaviour of the average consumer. The directive defines two
specific categories of commercial practice as particularly unfair: misleading commercial practices (by
action or omission) and aggressive commercial practices
Article 10bis Paris Convention
Protection against unfair competition
List of examples which comes with the art 10bis of PC
confusion
the denigration in form of false allegations
contradiction with honest practices we have the misleading actions
Differences between UC and IPRs
UC law does not grant property rights
UC law is tort law, not property law
IP law includes a closed list (numerus clausus) of exclusive rights while UC is by nature open
UC law may protect consumers directly while IPRs rather not
The key notion of UC law = fairness is more flexible than the rules of IP law
UC law may be enforceable by consumers, consumer organisations or administrative
authorities
