Malign Competition: Action and Remedy
In this final Chapter an attempt is made to integrate all aspects of the action for malign competition. Factual situations will be taken from cases in order to demonstrate how the action provides a sound rationale in the assessment of liability. Consideration will also be given to the remedies that are the result of a successful action. The first part is a recapitulation of the grounds for the action in malign competition where the focus is on the action for free acceptance augmented by constructive knowledge principles to assess liability. It is also at this point where we will ask which factors must be present in addition to the Baden progression to make a defendant liable. The later part is an assessment of the action on a factual case-by-case basis. The facts are taken from several cases that have been discussed in previous chapters and have been selected to display the maximum number of problems that can arise in malign competition cases. The facts of each case are briefly described, after which the application of the action and the problems that it deals with follow from the examples given.
MALIGN COMPETITION: FROM LIABILITY TO REMEDY
In the earlier chapters we saw that a synthesis, albeit partial, between unfair competition law and unjust enrichment does exist. It is now time to explore the working of malign competition. As we have already seen, liability in an action for malign competition is based on the principle of unjust enrichment, leading to a full synthesis of unfair competition law and the principles of unjust enrichment. Recapitulating, an action for malign competition starts with establishing that something of value has passed by means of subtraction from the plaintiff to the defendant, whereby the latter has been enriched at the expense of the former. For the enrichment to be unfair, it has to be the result of a non-voluntary transfer, or free acceptance of the benefit by the defendant. In case of non-voluntary transfer the plaintiff has been active in ensuring that it is clear that he does not intend to lose his assets by subtraction.
Liability in cases of free acceptance exists in two guises. In the case of passive free acceptance, there is the difficulty of intermeddling. The