Unfair Competition Law Research Articles

Unfair competition law in Ghana: unravelling the scope, evolving jurisprudence, challenges and future directions

Abstract Despite its implications for businesses and consumer welfare, unfair competition law has received limited scholarly attention in Ghana. This article fills a significant research gap by examining Ghana’s legal framework for unfair competition, focusing on legislative measures and court decisions in an attempt to facilitate comprehensive academic inquiry into the subject. The article explores how Ghana addresses unfair competition in line with international standards, particularly Article 10bis of the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. It assesses how Ghanaian courts have developed unfair competition protection jurisprudence over time with co-existing statutory and common law regimes. Additionally, it highlights the challenges in applying the law and areas for improving it. The study demonstrates how Ghana adopts various approaches to unfair competition, comprising a single source statutory reference point which coexists with the common law tort of passing off. The statutory approach, alone or with the other approaches, meets Ghana’s international obligations. However, there is a need for coherence and effectiveness in the interaction between statutory law and common law principles. Understanding this interaction is essential for ensuring Ghana’s consistent and effective application of unfair competition laws.

Sustainable Development Goals Against Unfair Business Competition Practices in Electronic Environment in Jordanian Legislation – Comparative Study

Objective: this study is to investigate to attempt to provide some legal assurance for fair and reasonable competition among business actors to sustainable development. Theoretical Framework: In this topic, digital market (e-commerce) is, the market reality today for Jordanian businesses and customers, and unfair business competition in the digital market is a new phenomenon. Hence, in the Jordanian context, this study attempted to impose more rules in order to reduce the potentials for unfair competition. Method: The study used the legal approach through used of the descriptive doctrinal approach by referring to laws, books, research and other references via the Internet. As for the comparative approach, such as referring to the law of the United Kingdom, French law and other laws to reach solutions to address unfair competition in e-commerce in Jordan. Results and Discussion: The rules in Jordan are not adequate in imposing some obligations and in protecting against illegal competition between merchants. In this regard, this study recommended the Jordanian unfair competition law and trade secrets 2000 need some amendments to keep abreast with the advancements in electronic transactions and to keep in line with the Law of Electronic Information and Transactions. Research Implication: The execution of e-commerce has challenged by several issues such as language, regulations, taxation, difficulties in recognizing actors, and countries’ legal differences, especially in Jordan. Originality/ Value: This research is the originality and creativity of the researcher and has not published before. It is a new work, which distinguishes the research from previous studies.

Protection of intellectual property rights against unfair trade practices in the European Union

It is indicated that each state must ensure fair competition in its market in order to support economic growth. This provision is also relevant for the European Union, within which the primary importance is to ensure free competition for the further development of a single system of circulation of goods, works and services, promotion of innovation and creativity, job creation and increased competitiveness, as all this is necessary for the EU to compete in global economy. This article provides a general analysis of the correlation and interaction between the provisions of intellectual property law and the provisions of competition law in the European Union (EU). In particular, the author examines the peculiarities of legal regulation of economic competition and intellectual property protection at the EU level, the state of compliance with EU competition law in the process of exercising and protecting intellectual property rights, and the role of court decisions in determining the balance between intellectual property protection and competition law requirements. The author emphasises that despite different objectives, competition law and intellectual property law have a common basis and therefore actively interact, i.e. these two systems are synergistic. The author analyses possible options for the relationship between protection against unfair competition and intellectual property laws, including the means that would reduce the often existing «tension» between them. Due to the need for a common regulatory framework to ensure that laws are in line with dynamic trade practices, the EU’s unfair competition laws are mostly flexible and general in nature. The author identifies the measures currently being taken by the EU to optimise the rules in this area. The author concludes that intellectual property protection, as well as effective antitrust regulation, are the most important legal mechanisms created to ensure economic growth based on the development and expanded use of innovations. The author also examines the measures currently being taken by the EU to optimize the rules in this area. It is concluded that the general trend of further development and improvement of interaction between antitrust and intellectual property legislation in the EU should be, first of all, overcoming regulatory and institutional dispersion.

The Adequacy of Jordanian Legislation in Protecting the Trademark to Attract Foreign Investments

Aim: This study aims to explain the entity of a trademark, its commercial trademark standards and judicial applications involved, the effect of trademark protection on attraction of foreign investments, aspects of trademark which attracts foreign investments within Jordanian and international legislations and the position of Jordanian law towards the famous and infamous trademark in protection without distinction. Implications: The trademark has become the center of attention to all countries including Jordan, and due to expansion in its use among products and services, countries and governments including Jordan decided to form legislations and laws organizing this purpose which guarantee the rights of all to attract foreign investments, taking into consideration the rapid technological development which influences expansion of the trademark and attraction of foreign investments, as this study shows the legal framework of the trademark and legal protection to it. Method: The researcher adopted the descriptive analytical method in the study to achieve the desired goals through the use of previous studies, laws, legislations, world and Jordanian agreements organizing this topic. Results: The study reached a number of results including: firstly, the trademark legal provisions in the Paris Agreement (1883), the TRIPS Agreement (1994), the Trademark Law No. (33) of the year (1952), and the Unfair Competition and Trade Secrets Law No. (15) of the year (2000) worked to protect trademarks, which helps attract foreign investments to Jordan. Secondly, expansion of the framework of protection of a trademark in Paris Agreement, where it extended to include the service mark side by side to a trademark and industry mark, and its registration and use include similar and different products and thirdly, Jordanian Trademark Law No. (34) of 1999 regarding trademark protection and preventing the registration of a trademark that is similar or identical, or shapes another trademark, or the use of another similar trademark upon registration that imitates international agreements, which upholds attracting foreign investments to Jordan.

Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing

Abstract This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.

Unfair Business Competition in Bankruptcy Institutions and Suspension of Debt Payment Obligations in Indonesia

Unfair business competition in the business world is not uncommon even though there has been a law on the prohibition of monopolistic practices and unfair business competition, namely Law Number 5 of 1999. Basically, in carrying out business activities, it is natural for business actors to compete with other business actors, but must comply with legal signs governing such competition. Along with the increasingly complex development of the business world and the ever older anti-monopoly and unfair business competition laws, unfair business competition practices are also developing. On this occasion, unfair business competition practices will be discussed by bankrupting competing business actors. The study in this paper uses the normative juridical research method which prioritizes literature studies through the applicable laws and regulations in Indonesia as well as several related book references and uses an analytical descriptive approach. Based on the studies carried out, along with the results of his research, competition for market share control for business actors is a very strategic matter as a result of which business actors often use unhealthy methods as stipulated in the anti-monopoly and unfair business competition law. Unfair business competition in the perspective of bankruptcy law as mentioned above can occur due to weaknesses in regulatory patterns regarding bankruptcy requirements as stated in Article 2 paragraph (1) UUK & PKPU.
 Keywords: unfair business competition practices, bankruptcy

Review of China’s unfair competition law: impact on intellectual property

The article examines the economic and legal problems of Chinese legislation on combating unfair competition, in particular, recent changes in the context of the impact on intellectual property (IP), abuse of IP rights in the digital economy. Law enforcement practice, protection against unfair competition in court proceedings, issues of investigation of cases and responsibility for violations are analyzed. Since the entry into force of the Anti-Unfair Competition Law 30 years ago, 757,000 cases of unfair competition have been investigated, fines paid or money confiscated amounting to 12,88 billion yuan (about 1,8 billion USD). This indicates a significant economic impact of competition legislation. The Supreme People’s Court of China has issued an Interpretation on the Application of the PRC Anti-Unfair Competition Law. The document clarifies issues related to general provisions, business ethics, confusion through imitation, false advertising, and unfair competition over the Internet and outside China. It explains that the general provisions of the Act apply only if the provisions of IP laws and specific provisions of the Act do not apply. The document defines two types of unfair competition through the Internet, namely: 1) insertion of a link or forced redirection of a URL to an Internet product or service that is legally provided to another business entity, without the consent of other persons and users, and 2) maliciously interfering with or disrupting a network, disrupting a product or service that is lawfully provided by others by misleading, deceiving, or forcing users to modify, close, or unload them without express notice and consent of users. In cases where the unfair competition takes place outside of China, but the result of the violation occurs in its territory, the court of the place where the result of the violation occurs in China shall have jurisdiction. This provides Chinese rights holders with favorable opportunities to protect their rights. Draft amendments to the Law on Combating Unfair Competition were considered. It is concluded that the study and application of the experience of China’s regulation of protection against unfair competition will be useful for legislators, administrative and judicial bodies of Ukraine

중국의 TV방송 프로그램 포맷 보호에 관한 고찰

A broadcast format can be thought of as the framework, containing elements that distinguish it from other programs with fixity and identifiability, such as the program name, stage setting, and background music. There is some debate as to whether program formats can be legally protected under traditional copyright principles based on the idea-expression dichotomy.
 According to China's copyright law, for an intellectual product to be legally protected as a work, the following three conditions must be met: (1) the work must be an intellectual achievement in the field of literature, art, and science; (2) it must have originality; and (3) it must be expressible in a certain form. Given these principles, there are practical limitations to how broadcast program formats can be included in the category of copyrighted works to provide protection under the existing legal order. One way to overcome these limitations is to consider the approach method, which focuses on the substantial similarity of the two broadcast programs at issue.
 On the other hand, in the broadcast program market, subsequent programs created by copying and plagiarizing an existing successful broadcast format may constitute unfair imitation under the Unfair Competition Law and should be sanctioned under the law. If a format creator trades in format rights or attracts investment based on a format, it is an obvious commercial activity. Therefore, if a broadcast program format is in competition, it is reasonable for the format creator's behavior to be regulated by the Anti-Unfair Competition Law. However, there are certain limitations to the ability of the Unfair Competition Act to regulate infringement of broadcasting formats.
 In the future, as trade between Korea and China in the cultural content industry expands, it is expected that the number of broadcast program formats produced in China will increase as in the past. In light of this, the discussion on broadcast program formats in China and the study on how to legally protect the rights of authors is also relevant to Korea.

The stunted development of unfair competition law in the United States and Canada

Abstract Both the United States and Canada present unfair competition law in a way that is complex and indicative of their kindred beginnings. Sharing a closely paralleled history in the development of unfair competition law, these countries exhibit unique similarities in both substance and approach, likely not found in any other jurisdiction. Born out of English common law, the early trajectory of unfair competition was inextricably linked to trade mark law. Both countries’ legislatures passed ambitious trade mark statutes that created federal regulation of certain areas of unfair competition, while also reserving large areas for the state or provincial legislatures to regulate. Claimants therefore navigate substantial variety in unfair competition protections depending on the cause of action. Even so, obligations under international agreements such as the Paris Convention and interaction with other bodies of law further extend the unfair competition legal landscape. Despite its complexity, the United States and Canada share remarkably similar paths to unfair competition protection. Understanding their history, limited national legislative powers, policy rationales, obligations under international agreements and the interplay between federal and state or provincial law create a rich and multifaceted unfair competition landscape.

Protection of data under unfair competition law in Japan and Korea—a case of asymmetric convergence?

Abstract This article explores the question of overlap in unfair competition law in Japan and Korea and discusses whether the introduction of a general clause could address the problem of overlap. Positive laws regulating unfair competition in Japan and Korea have adopted a similar set of rules based on specific conduct regulation, with some variation. Notably, Korean law now prohibits the unfair use of another’s achievement based on an open clause, complementing the specific list of prohibited conduct. The article first presents an overview of unfair competition law in Japan and Korea, highlighting the requirements for protection and limitations, and then explores the problem of overlapping claims surrounding data misappropriation. Contrasting the legislative techniques used by Japan and Korea, this article notes that an open norm may provide the judiciary with an interpretative tool to dynamically address emerging unfair conduct. However, as there is a danger of limiting free competition and potential internal inconsistencies, to avoid asymmetric convergence, open norms should be carefully coordinated with specific conduct prohibitions, with clear prioritization.

The incremental growth of unfair competition law in India

Abstract In keeping with other common law jurisdictions, India lacks a unified legal basis for protection against unfair competition. There is no single legislative reference point, or standalone tort of unfair competition. India instead offers up a menu of specific statutory options, common law torts and the equitable action against a breach of confidence, to satisfy its international obligations to prevent unfair competition. There have been two noteworthy developments in recent years: (i) the tort of malicious falsehood has gradually abandoned a strict malice requirement, such that (objectively assessed) disparaging advertising is now actionable; and (ii) an emerging right of publicity, to prevent image misappropriation, is taking shape but its foundations are unclear. One (non)development also deserves closer scrutiny. A claim drafting trend has emerged whereby plaintiffs petition courts to prevent ‘unfair competition’, or ‘misappropriation’. This implies that a nominate tort of unfair competition, or one of misappropriation, exists in Indian law. However, when directly approached to create a tort against misappropriation per se, Indian courts have declined this invitation, based on compelling reasons. Both litigants and courts need to be more careful in their use of such terminology. As things presently stand, there is no tort of unfair competition, nor of misappropriation, in Indian law.

No Cumulative Protection Against Likelihood of Confusion Under Trade Mark and Unfair Competition Law

No Cumulative Protection Against Likelihood of Confusion Under Trade Mark and Unfair Competition Law

The Fairness Principle in Competition-Related Economic Law

Abstract Fairness appears as the guiding paradigm for regulating the digital economy. Yet its exact meaning has always remained dubious. The present article, which summarizes key insights of my doctoral thesis, ‘Fairness als Rechtsprinzip’, aims at filling this theoretical void by exploring to which extent fairness phenomena in competition-related economic law (understood as comprising unfair competition, antitrust, IP, trade secrecy, contract, anti-discrimination and data law) may be united under an overarching legal principle. Departing from the classic fairness-defining notion of ‘honest commercial practices’ enshrined in Art. 10bis para. 2 of the Paris Convention for the Protection of Industrial Property, the article overall suggests to (re-)construct the fairness principle as a normative bridge between law and society. Its task, viewed against the backdrop of a legal pluralist analysis of sociological disruptions in the globalized digital economy, is to normatively moderate the interplay of state and non-state rules of market order towards the common good from the perspective of the state.

Gatekeeper’s potential privilege—the need to limit DMA centralization

Abstract The Digital Markets Act (DMA) aims at promoting contestable and fair markets for core platform services by setting out obligations for designated gatekeepers. As the DMA does not clearly define these objectives, it comes into conflict with national legislation with overlapping objectives. This may include unfair competition laws and sector-specific regulation. Article 1(5) DMA addresses this conflict by stipulating that Member States may not impose further obligations on gatekeepers for the purpose of ensuring contestable and fair markets. The effect this has is that national provisions vis-à-vis gatekeepers may not be applicable anymore, and competences are centralized on the European level more broadly than potentially envisaged by the European legislature. This centralization of competences runs the risk of inadvertently privileging gatekeepers by blocking national laws that are, however, still applicable to small and medium-sized enterprises (SMEs) and other firms competing with gatekeepers. This article suggests solutions to mitigate such a risk.

What Can Big Data Protection Learn from Trade Secret Protection?

The nature of big data protection remains an enigma. By ‘big data’, we refer to data that are non-copyrightable, non-secret and do not fall into the scope of existing intellectual property laws. Assuming such data do require some sort of protection in order to incentivize investment, what form shall the protection take? Contract law, tort law, unfair competition law or a sui generis intellectual property law? There is no consensus among different jurisdictions. Some jurisdictions follow a property law approach. For example, the EU has been offering sui generis IP protection to databases with Directive 96/9/EC on the Legal Protection of Databases. In contrast, many other jurisdictions choose to follow a non-property law approach. Take the United States for example. A century after International News Service v Associated Press, in which the misappropriation doctrine was used to offer ad hoc protection to hot news, the US still has not introduced a sui generis right. Even though non-copyrightable, non-secret and valuable data do receive some legal protection, the ideal form of protection is yet to be clarified.

Why firms do (not) use design rights to protect innovation: A literature review

Design in general is inextricably bound to a product and market perspective, however design rights only start to matter in the academic literature. The literature until now has somewhat progressed in understanding as to which and why firms use design rights for protection. To a lesser extent there is an understanding of why firms choose not to register designs. This is a conceptual paper based on a literature review and a small sample of qualitative interviews. Factors influencing design protection dynamics are grouped into four layers, legal and institutional factors, technological and sectoral factors, spatial and locational factors, and firm-related factors. What is most treated in the literature on design rights and their use is the influence of firm-internal factors like the perceived effectiveness of the protection and the costs associated with design rights. Another important factor in the literature is the skewed sectoral distribution which points to a strong influence of technological opportunities as relevant for the use of design rights. What has scarcely been treated in innovation economics but still seems relevant is the overlaps and trade-offs between different forms of protection, geographical scopes of protection and different laws, like the IP law and the unfair competition law.

When Trade Mark Law Functions Doctrine Preempts Unfair Competition Law

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.

Data Misappropriation

Data scraping (also called web scraping, screen scraping, or web crawling) is a technique that uses “bots” to automate the collection of information from publicly available websites. Fundamentally, data scraping is data copying. Intellectual property (“IP”) law—namely, copyright—typically handles disputes involving copying. However, copyright law largely fails to protect data and databases (i.e., compilations of data). Instead, plaintiff websites assert contract law, Computer Fraud and Abuse Act (“CFAA”), and state unfair competition law (common law misappropriation, unjust enrichment, conversion, and trespass to chattel) claims against data scrapers. This Note proceeds as follows. First, this Note examines how scrapers can be liable under trade secret law for scraping data from publicly accessible websites. Initially, trade secret law seems incongruous with data scraping because the core concept of trade secret law—secrecy—is seemingly at odds with public accessibility. If a website is publicly available, how can a scraper be liable for trade secret misappropriation of the website’s data? This Note explains how a recent Eleventh Circuit case, Compulife Software Inc. v. Newman, laid the groundwork for a trade secret cause of action. This Note reconciles Compulife with existing trade secret jurisprudence, argues that Compulife was rightly decided as a matter of both law and policy, and provides a roadmap for courts to apply trade secret law to data scraping cases. Second, this Note explains why courts and litigators should use trade secret law to adjudicate data scraping disputes. Specifically, this Note argues that, compared to the existing alternatives, trade secret law is best suited to handle the various policy issues surrounding data scraping. This Note explains how contract law and the CFAA have filled the database void left by copyright law: contract law and the CFAA have become “quasi-IP” regimes, granting websites property rights in databases otherwise unprotected by copyright law. In response to the emergence of quasi-IP, this Note argues for reconceptualizing the data scraping problem by reframing data scraping as data copying—reframing data scraping with an intellectual property lens. Trade secret law offers a framework for that reconceptualization. In contrast to contract law and the CFAA (an anti-hacking law premised on criminal trespass principles), trade secret law provides courts and litigators with the appropriate IP-based doctrinal levers to analyze data scraping cases. Finally, this Note analyzes how EU law filled the database gap by creating an IP right, the sui generis database right. This Note argues that Compulife’s trade secret theory emulates many aspects of the EU sui generis database right. In this sense, Compulife’s trade secret theory can be seen as the United States’ attempt to fashion its own sui generis database right to fill the database gap left by copyright.

Anatomy of web data scraping: ethics, standards, and the troubles of the law

The paper examines the ethical and legal issues raised by web scraping technology. Attention is drawn to some landmark rulings to emphasize that jurisdictions such as the US and the EU Member States tackle issues of scraping from different perspectives. Although most litigation involves IP law, in particular copyright and the rights of database producers, scraping can also raise problems of data protection, unfair competition, and public or criminal law. Besides, many of such issues may fall into the gaps of the legal system. Accordingly, the paper aims to provide an overall framework for the ethical and legal issues of scraping, to take sides between ‘good’ and ‘bad’ uses of technology and, on this basis, flesh out the legal hard cases of the field.

《反不正当竞争法》一般条款在企业数据爬取行为中的适用

《反不正当竞争法》一般条款在企业数据爬取行为中的适用