Is Intellectual Property Pluralism Functional?
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Is Intellectual Property Pluralism Functional?

Edited by Susy Frankel

The international intellectual property (IP) law system allows states to develop policies that reflect their national interests. Therefore, although there is an international minimum standards framework in place, states have widely varying IP laws and differing interpretations of these laws. This book examines whether pluralism in IP law is functional when applied to copyright, patents and trademarks on an international basis.
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Chapter 5: The role of confusion in unfair competition law: a comparative perspective

Jennifer Davis

Abstract

Providing a remedy against a misrepresentation is central to unfair competition law. This chapter is concerned with unfair competition law in four jurisdictions: the UK, France, Germany and the United States. It argues that across these jurisdictions there are at least two different approaches to identifying an actionable misrepresentation: approaches which often coexist within national boundaries, although generally one will predominate. The first approach privileges the importance of consumer confusion for finding an actionable misrepresentation. The second privileges the nature of the misrepresentation, and looks at its effects on the claimant’s goodwill to determine if it is actionable. The chapter concludes that since damage to goodwill is harder to prove than mere confusion, it is the UK and France, who take this latter approach, whose unfair competition laws leave room for greater market freedom not just for businesses who take advantage of such laws but also for their rivals.

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