Unfair Competition Law: The Protection of Intellectual and Industrial Creativity

By Anselm Kamperman Sanders | Go to book overview

1
Unfair Competition: Its Legal Basis

INTRODUCTION
In this Chapter the international dimension and the principles of unfair competition law will be set out. As such the international superstructure of the Paris Convention will be the starting point. Then its principles in various jurisdictions will be traced. Through describing the structure of unfair competition law in selected countries, the differences in the legal basis for unfair competition law will show. Two distinctive groups are discerned.
i. Systems in which unfair competition law is based on common law principles. France, the Netherlands, Italy, and the United Kingdom are briefly discussed as examples of this approach.
ii. Systems in which unfair competition law is based on a special law. Belgium, Germany, Austria, Switzerland, Luxembourg, Spain, and Greece are briefly discussed as exponents of this approach.

A third and residual group of countries will be discussed in more detail at this point. This third category consists of countries with a concurrent approach to common law and special law principles, but also of systems that encompass certain hybrid forms of common law and civil law principles. The situation in Canada, South Africa, and Israel serves as an example of this approach.

In discussing the foundation for unfair competition law in these various jurisdictions on the basis of their respective approach to unfair competition law, certain problems involving the way in which the legal rule in unfair competition cases is found, like the principle of pre-emption or the use of policy considerations in decision-making, are explained and illustrated by cases. The fact that these problems are discussed in a national context, rather than a universal one, does not mean the problem is not present in the whole field of all national unfair competition laws; on the contrary! The problems are universal, but some problems have been discussed more extensively, or in greater detail in some jurisdictions than in others.


I
UNFAIR COMPETITION, INTERNATIONAL PRINCIPLES

Protection from unfair competition has found its recognition in Article 10bis of the Paris Convention for the Protection of Industrial Property,

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