Unfair Competition Law: The Protection of Intellectual and Industrial Creativity

By Anselm Kamperman Sanders | Go to book overview

4
Shaping a New Action of Malign Competition

INTRODUCTION

This Chapter explores the possibility of shaping a novel action based on the existing principle of unjust enrichment. Because the principle of unjust enrichment will feature extensively in the latter part of the book and because the recognition of the principle has been fraught with difficulty in the common law systems, the Roman antecedents of the action based on it, its development and theoretical justification will be covered first. Then the development of the doctrine in English law will be described. From section 3 onward the place of the doctrine of unjust enrichment in unfair competition law is discussed. The practice of justification by means of property theories of protection in unfair competition cases beyond the recognized categories of tortious liability is finally abandoned and the possibility for a novel approach emerges. In section 4 the grounds for liability on the basis of the doctrine of unjust enrichment are described at common law. Examples of the particular application of the doctrine to badges of trade are already given. In section 5 the current state of the law of unfair competition incorporating elements of unjust enrichment is explored by looking at a selected number of jurisdictions.


1
UNJUST ENRICHMENT AS THE BASIS FOR UNFAIR COMPETITION

Property theories1 and policy decisions2 have proven to be too weak a basis on which to form the foundation for a unitary system of unfair competition. In this Chapter we will look at the possibility of basing unfair competition provisions on the principle of unjust enrichment. In order to do so, we must trace the origins of unjust enrichment and the position of this principle in various legal systems. Drawing from various sources a specialized provision of unfair competition based upon unjust enrichment is formulated.


1.1
Unjust Enrichment

In this section we will look at the history of the principle of unjust enrichment in order to find a proper definition. Central to the proposition

____________________
1
See Ch. 2, sect. 1.1.
2
Ch. 1, sect. 3.4.2.

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