Cognizance in Malign Competition
With the doctrine of unjust enrichment as a feasible alternative for tortious liability, the action for malign competition hinges on the level of cognizance the defendant posesses, so that a truly innocent market participant is not faced with unexpected claims. For this purpose a detailed proposal for a general tort of malcompetitive copying will be described in order to show the weaknesses that prevail in a system in which the application of the doctrine of unjust enrichment is modified to protect market participants against unexpected claims. To this end proprietary claims by means of tags are relied on to shift the basis of liability from unjust enrichment back to tort.
In order to create safeguards against unexpected claims, it is submitted that the role cognizance takes in the action for malign competition in free acceptance cases for unjust enrichment be strengthened. The level of cognizance that is necessary for a defendant to make a real choice with regard to the business risks he is taking is then assessed. In the assessment trust law will be relied upon. With its underlying principles based on the doctrine of unjust enrichment, the area of constructive trust is extemely well suited to use as a parallel.
After a description of the basic principles of the constructive trust, an overview of the development of knowledge types recognized in the English case of Baden, Delvaux and Lecuit v. Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA1 is given. In order to give a comprehensive overview of the recognition and application of knowledge types at common law, both English and New Zealand case law are covered in order to demonstrate a conservative and a progressive approach. Subsequently it is submitted that the progressive New Zealand approach is best suited for application in the action against malign competition.
Crucial to the restitutionary claim is the knowledge on the part of the defendant who is about to appropriate something claimed by another.____________________