Unfair Competition Law: The Protection of Intellectual and Industrial Creativity

By Anselm Kamperman Sanders | Go to book overview

Introduction

This book focuses on competition law concerning issues of intellectual property and related intangibles. The subject matter discussed in the book comprises formally recognized forms of property, such as copyright, patent, and trade mark, but it predominantly focuses on all related forms of, commonly termed, quasi-property rights and interests or badges of trade. The term 'badge of trade' is therefore applied to all the subject material that does not enjoy formal recognition as an intangible of intellectual property.

In today's global market safeguarding free, but fair, competition in the market becomes ever more important. The varying degree to which restraints can be imposed on the freedom to compete has been determined by the implementation of the antagonistic policies of laissez faire and market intervention. At present there are clear indications that the desire to safeguard free competition through minimum intervention features high on the policy agenda. The inclusion of the TRIPs (Trade Related Aspects of Intellectual Property) in the GATT (General Agreement on Tariffs and Trade) negotiations on a world level prove a clear wish to provide a basic level playing field for world competitors.

Closer to home, the harmonization efforts of the EC Commission in the field of intellectual property law have transformed the law in the Member States, so that a more homogenous European picture now emerges.

One area of intellectual property law has, however, proven to be too elusive to standardize, let alone harmonize: unfair competition law. Despite the fact that common standards do exist (the Paris Convention being the main exponent), unfair competition law remains an elusive area of law that is hard to categorize. A recent study by the International Bureau of the World Intellectual Property Organization (WIPO) entitled: 'Protection Against Unfair Competition'1 not only shows many common elements, but also displays the diversity of norms throughout the world. This study has culminated in Model Provisions on Protection Against Unfair Competition, which can be found in the appendix.

Whereas several well defined torts of unfair competition (the creation of confusion, misleading the public, discrediting competitors, violation of trade secrets, and slavish imitation) display a high level of similarity, other acts of unfair competition involving copying or appropriation of some sort rely, not so much on the well defined confinements of tortious liability, but

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1
No 725(E) ( Geneva, WIPO, 1994), culminating in the Model Provisions on Protection against Unfair Competition, No 832(E) ( Geneva, WIPO, 1996).

-1-

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