Convergences and Development
Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly
Chapter 1: What to protect, and how? Unfair competition, intellectual property, or protection sui generis
What do we mean when we refer to 'unfair competition', and which place should be attributed to it in the legal system - if there is a place for it at all? Does it make sense to equate behaviour which, for one reason or another, is considered 'unfair' towards one's competitors, with conduct which is inadmissible under legal terms? Is it possible for that purpose to define the notion of 'unfairness' with sufficient precision to serve as a basis for legal sanctions? It is well known that the answers to these questions are not the same throughout Europe. For British lawyers, the fuzzy character of the notion 'unfair competition' is exactly why many consider it inappropriate as a legal concept informing a special kind of tort. From that perspective, 'fairness', as in sports, would seem to require a judgment based on ethical standards which are generally accepted as the rules of the game by one's peers, malleable to some extent, and often hard to grasp by an outsider - in short, quite opposite to the secure ground which legal rules should provide. And even in continental Europe, where long-standing legal traditions have developed in the area, the notion of unfair competition and its place in the legal system remain somewhat enigmatic, not least from a comparative perspective. It is a reflection of that diversity that no attempt has been made so far in European law to harmonize this area other than concerning marketing activities directed towards consumers.
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