|Sanders, A.W.J. Kamperman
|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
The fact that the principle of unjust enrichment is
universally recognised will in the opinion of the author
advance the prospects for future harmonisati
|Queen Mary University of London
|Badges of trade: the protection of trade marks and related intangibles in unfair competition law
|The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author