Unfair Competition Law: The Protection of Intellectual and Industrial Creativity

By Anselm Kamperman Sanders | Go to book overview

2
Applying the General Principle in Particular Circumstances

INTRODUCTION

In the previous Chapter we saw the legal basis of unfair competition law in all its guises. We identified the problems associated with pre-emption and described the rationale behind a general provision against unfair competition. In this Chapter the diverging attitudes towards and views on the justification for decisions in cases of unfair competition will be discussed. The steps that are taken in a judicial process to go from a general norm to the specific implementation of a general rule on a particular set of facts will be covered. Property theories and policy considerations are at the heart of the establishment of a legal rule in unfair competition cases. The questions asked in this Chapter are whether these criteria are sufficiently objective to legitimize a decision, how this decision-making process works, and whether there are sufficient grounds to move beyond the universal norm that leads to tortious liability for the creation of confusion or avoidable confusion in the market-place.


I UNFAIR COMPETITION: FINDING OBJECTIVE CRITERIA

Reasons for the absence of a law of unfair competition in common law systems lie mostly in the fact that judges are of the opinion that general principles are not suited for regulation of the market-place. This is because the criteria for the assessment of what is unfair behaviour in the market-place are thought to be ambiguous. In civil law systems, either the entire law of unfair competition or a large part of it is based on general sweeping statements, be they civil code provisions or general clauses in unfair competition laws. It is therefore important to find objective criteria to create certainty in the law.

Many of the accepted actions in unfair competition put more emphasis on the rights of a market participant and the protection of his goodwill and business than on reprehensible conduct by an infringer of these rights. In this sense the law of unfair competition is often more a positive statement of the plaintiff's rights, often expressed in terms of property, than of oblig

-78-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Unfair Competition Law: The Protection of Intellectual and Industrial Creativity
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 232

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.