Badges of trade: the protection of trade marks and related intangibles in unfair competition law

Abstract

The increasing efforts within the European Union to harmonise intellectual property law also lead to the approximation of some aspects of unfair competition law. Despite these efforts, common standards for unfair competition law are still not present. To find a common legal norm defining the scope of protection of trade marks and related intangibles in unfair competition law, similarities and differences between various national unfair competition provisions are explored in the light of the Paris Convention. Setting aside the clear examples of tortious behaviour in competition, the difficulty surrounding the definition of clear norms in other unfair competition cases is recognised. Protection of intangible subject matter on an other basis than tort can lead to idiosyncratic and circular reasoning. It is shown that property theories and policy decisions have to be dismissed as the sole basis in the determination whether protection is due. The author describes how a legal concept bearing close resemblance to tort can overcome these problems. He describes and argues for an action for 'malign competition', based on the concept of unjust enrichment. In examining selected legal systems in more detail, several key aspects of the proposed action appear to be in operation already, albeit not recognised. Selected cases from several jurisdictions are subsequently tested according to the model of the proposed action for malign competition. It is demonstrated that the legal reasoning is more satisfactory, offering a clear norm and takingway the old idiosyncrasies. Where the outcome on the basis of the same facts is different, it is shown that this is the result of a more satisfactory implementation of the notions of preemption and equitable remuneration than is currently employed. The fact that the principle of unjust enrichment is universally recognised will in the opinion of the author advance the prospects for future harmonisati