Unfair Competition Law in the United Kingdom

Abstract

It is a generally accepted truth that the United Kingdom has neither a general statute protecting traders against unfair competition nor has it developed a general tort of unfair competition.1 However, if one examines judicial dicta this conclusion appears less certain. For example, recently in Arsenal v. Reed (2003)2, the ECJ set out important principles as to when use of a registered trade mark is infringing use.3 However, in the United Kingdom where the case originated, Arsenal v. Reed has also been widely touted as the case in which the Court of Appeal finally recognised that domestic law does indeed encompass a general tort of unfair competition. In the case, the claimants were a football club who had a number of registered trade marks, including the word “Arsenal” and a shield logo, registered against a range of goods, including clothing; the defendant Mr. Reed was a trader who had sold clothing carrying the Arsenal trade marks outside the Club’s ground for many years. The claimant brought an action against Mr. Reed for registered trade mark infringement, which raised the questions subsequently addressed by the ECJ. The Club also sued Mr. Reed in the tort of passing off. In his judgement, Lord Justice Aldous noted obiter that the “cause of action traditionally called passing off, [is] perhaps best referred to as unfair competition”.4 In making this observation, Lord Justice Aldous took as his authority a statement made by Mr. Justice Cross as long ago as 19695 referring to another passing off case, Bollinger and Costa Brava Wine 6, decided in 1960.