CIPIL spring conference 2009

Unfair Competition - Where Are We Now and Where Are We Going?: Faculty of Law, University of Cambridge, Saturday 14 March 2009

Chair: Mr Justice Richard Arnold.

Speakers included Joachim Bornkamm, Justice of the German Supreme Court; Henry Carr QC, (11 South Square); Dr Jennifer Davis, (University of Cambridge); Geoffrey Hobbs QC; Lord Justice Robin Jacob; Professor Ansgar Ohly, (University of Bayreuth); Professor Dirk Visser, (University of Leiden); Professor Geraint Howells, (University of Manchester); Professor Christopher Wadlow, (University of East Anglia).

English law has not, to date, recognised an action for unfair competition, providing instead for protection of traders against particular categories of wrongs (such as passing off, malicious falsehood, breach of confidence, inducing breach of contract) and protecting consumers from misleading and deceptive trading through distinct criminal law regimes. Legal systems in continental Europe have typically taken a different approach: providing traders and consumers alike with protection against unfair competition, an extensive notion extending beyond wrongful misrepresentation as to the origin or quality of a trader’s goods or services so as to include disparagement and free-riding.

The presentations at this conference explored the current situation in the United Kingdom and Europe, and looked at the prospects for reform.

Questions addressed included: What is the current protection granted to traders in the UK against unfair competition? Does the UK meet its international obligations? What are the differences between the protection afforded to traders in the UK and that granted to them in continental Europe? Why does the UK distinguish between business-to-business and business-to-consumer practices? What is the experience with harmonization to date? What problems is the harmonization project encountering in relation to comparative advertising? Is the ECJ developing a concept of ‘unfair competition’ in its interpretation of trade mark defences? What is the meaning of ‘unfair competition’ in the Rome Regulation on applicable law? Where should we go from here? What are the experiences of other European countries? How does a broad unfair competition law sit with carefully delineated intellectual property rights? Is the UCP Directive a good model for further harmonization?