Article 10bis of the Paris Convention as the common denominator for protection against unfair competition in national and regional contexts

Abstract

Abstract This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.