(No) Freedom to Copy? Protection of Technical Features under Unfair Competition Law

Abstract

Innovation is triggered by patents – at least that’s the conventional wisdom on which the patent system (more generally, the system of technical innovation rights) is founded. No attempt shall be made here to venture into the recurrent battles of faith over the validity of that statement. Instead, the starting point for the following lines is the question to what extent are innovative, technical features generally excluded from protection under legal regimes other than patent or utility model law. The topic is frequently addressed under trademark law, where it has resulted in the inclusion of specific provisions into the European Trademark Directive (89/ 104/EEC, TMD) and the Community Trade Mark Regulation (40/94, CTMR).1 Instead of dealing with European trademark law, however, this contribution will limit itself to examining whether and to what extent national unfair competition law offers a basis for protection of technical features. The choice of this topic is a tribute to the fact that in the early days of Joseph Straus’ academic career, unfair competition was a focus of his scientific interest.2 In recalling the early beginnings of an extended and immensely fruitful period of academic writing, this contribution is meant to commemorate the many years both Joseph Straus and the author have spent in the physical and spiritual realms of the Max Planck Institute in Munich.