When Trade Mark Law Functions Doctrine Preempts Unfair Competition Law

Abstract

The interface of national unfair competition laws and protection under intellectual property rights is a much-debated topic among scholars and practitioners in Europe. Overlap-discussions about trade marks are put at the forefront, with both trade mark law and national unfair competition laws regulating both market behaviour and how an undertaking communicates its goods and services in the market. However, the two sets of rules have somewhat different purposes. In simple terms, trade mark law is intended to ensure the mark acts as a link between an undertaking that sells goods and services and the relevant market, while the primary function of unfair competition rules is to ensure that competition between traders does not take place in a disloyal manner. Trade mark law is harmonised in the EU through the Trade Mark Directive (EU) 2015/2436, and protection against disloyal conduct between traders is to a great extent based on national rules. While national rules and practices in trade mark law must be adapted to EU law sources, there will be greater scope for discretionary and concrete national assessments of prohibitions in unfair competition laws. Thus, outside the scope of the Trade Mark Directive, Member States and courts are free to provide for or apply national solutions. Whether one or the other sets of rules is applied will thus have an impact on the degree to which EU law influences the national practice.