Intellectual Property, Unfair Competition and Publicity
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Intellectual Property, Unfair Competition and Publicity

Convergences and Development

Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly

Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.
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Chapter 3: Personality rights, unfair competition and extended causes of action

Guido Westkamp


This contribution aims to reflect upon the increasing convergence between the two topics discussed during the two EIPIN Congresses in London and Munich 2010, the protection of personality rights as a commercial asset on the one hand and the notion of unfair competition as a sometimes problematic alternative to, or indeed substitute for, statutory intellectual property rights on the other. Cases where such convergence can be shown usually concern claims for a proprietary protection of licensing agreements that have as their object certain aspects of a celebrity's persona, such as name, image, or indeed aspects of private life that have commercial value thanks to an increased media attention. This is notable and, perhaps, even astonishing: UK law neither accepts the existence of a general tort of an infringement of personality rights, nor have demands for a more extensive approach to unfair competition - in addition to, specifically, the more limited action for passing off - been accepted by courts. In that sense, the protection of such licensing agreements provides the perhaps most intricate scenario in which to test the various approaches that may be taken in order to protect personality rights. Here, both questions of the degree of protection under human rights law, and protection (of the licensee) under unfair competition models arise. The analysis here focuses on UK lawin particular, with references to other jurisdictions (notably Germany) where appropriate.

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