Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 4

Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

The fields of intellectual property have broadened and deepened in so many ways that commentators struggle to keep up with the ceaseless rush of developments and hot topics. Kritika: Essays on Intellectual Property is a series that is designed to help authors escape this rush. It creates a forum for authors who wish to more deeply question, investigate and reflect upon the evolving themes and principles of the discipline.
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Chapter 3: Unfair competition law – an annex to IP law? A consumer protection law?A legal field in its own right?

Frauke Henning-Bodewig


Laws protecting against unfair competition are well established in some European countries, but not well considered in other countries, notably not in jurisdictions of Anglo-American legal tradition. This essay explores the historical roots of unfair competition law in the Paris Convention for the Protection of Industrial Property of 1883 and the paradigmatic shift national unfair competition laws have undergone due to the movement of consumer protection and the ongoing harmonization of laws in the EU. It examines the very concept of fairness, in particular as it may or may not apply to unethical advertising, as well as the interfaces between unfair competition law, the protection of intellectual property, contract law and antitrust law. The contribution also discusses the many different ways of enforcing unfair competition law and the problems of over- or under-enforcement. It concludes by affirming the need for protecting both consumers and competitors against unfair business practices on the one hand, and, on the other, the persistent task of developing a systematically consistent and stringent general framework for all rules on unfair competition.

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