What to Protect, and How? Unfair Competition, Intellectual Property, or Protection Sui Generis

Abstract

While legal theory postulates that a clear borderline exists between the area covered by intellectual property rights and the surrounding glacis where imitation of others’ achievements is free, the division is all but distinct in practice. In particular in continental European countries such as Germany where unfair competition laws have traditionally been employed for granting protection under certain conditions against “slavish imitation”, the distinction – which is formally one of object-related protection vis-a-vis conduct-oriented assessment – sometimes appears as a matter of semantics rather than substance. Unfair competition protection may thereby assume the role of an incubator for new types of rights to emerge, which are later-on integrated into the corpus of traditional intellectual property laws or are transformed into rights sui generis. After describing and analysing the phenomena, the article suggests a systematized approach towards such legal metamorphoses that strives to reconcile the diverging objectives of flexibility and legal security.