Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 10: Passing off and unfair competition regimes compared

Mary LaFrance


With respect to both registered and unregistered trademarks, there is a distinct cultural difference between legal regimes that give primary importance to the policy of preventing consumer deception, and those that treat this goal as subsumed within the larger goal of regulating competition. For the most part, the narrower goal of consumer protection predominates in the common law countries, while civil law countries have embraced the broader concept of unfair competition. However, approaches to competition are more nuanced than this, and such a two-part classification oversimplifies the cultural conflict. Within the common law and civil law sectors, there are a variety of approaches, and some common law jurisdictions have interpreted the common law doctrine of passing off more broadly than others, although stopping short of a full-fledged law of unfair competition. In general, the approach of civil law countries elevates the goal of fairness above that of competition and has thus been criticized as anticompetitive. The common law approach tends to make competition the primary goal, treating fairness as a consideration only when a competitor’s conduct is particularly extreme. Such extreme conduct may be found, for example, where the competitor’s actions are likely to mislead or confuse consumers about the origin or nature of the goods on offer.

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