Applying the General Principle in Particular Circumstances
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.
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-