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Dissertation
Immaterialgüter- und Wettbewerbsrecht

Unfair Competition Relating to Misappropriation

Misappropriation and misrepresentative are two sources of unfair competition law. When judging misappropriation, it does not need the condition of consumer confusion. When the subject-matters are not protected by intellectual property law, or once were protected but are now expired, they may be protected by unfair competition law. However, the protection condition should be very strict (only when market failure happens).

Last Update: 28.11.17

Theoretically, there are two sources of unfair competition law: misappropriation and misrepresentative. Misappropriation is more related to copyright law and patent law, and misrepresentative is more related to trademark law. When judging misappropriation, it does not need the condition of consumer confusion.


In the civil law system, although many countries emphasize that imitation should be free, sometimes they prefer to protect the intellectual interests that are not protected by the intellectual property law in the judicial practice according to the misappropriation rules. This is refected not only in the cases, but also in some unfair competition laws such as Switzerland Unfair Competition Law. In Germany, the related provision is the Section 4(9) UWG, and there exist many cases. However, the condition to use misappropriation rule is very restricted.


In the common law system, countries like England, Australia and Canada reject to protect intellectual interests that are not protected by the intellectual property law. However, sometimes they will use the sweat-on-the-brow rule to protect those achievements, such as in the case Temple Island v New English Teas. In USA, the principle of misappropriation started from the famous INS case, and many other cases appears later. However, this INS rule is criticized by many scholars, and its conditions tend to be more serious than before.


Sui generis database right, protection of unregistered design and neighboring right for the news publishers are closely related to misappropriation rules. Before the EU Database Directive built a Sui generis database right, databases which are not original enough will be protected through unfair competition law. In the EU Design Regulation, besides the registered design, unregistered design is also protected. Germany created a neighboring right for the news publishers, and now even the committee of EU is thinking of creating such a neighboring right. However, according to the related evaluation report of EU, the Sui generis database right didn’t bring database’s boom and the it was also very difficult to judge the effect of unregistered design. And according to the evaluation report of Max Planck Institute, the neighboring right for the news publishers in German also didn’t work very well.


Nowadays, more and more types of intangible subject-matters are granted broad, long-term and strong intellectual property protection. However, intellectual property rights for strong innovations or creations should be defined narrowly. Instead of creating the new special rights, protecting these intellectual interests through flexible doctrine of unfair competition law would be better. In conclusion, when the subject-matters are not protected by intellectual property law, or once was protected but now is expired, the subject-matters may be protected through misappropriation rules without the consumers’ confusion. However, the condition of unfair competition protection should be very strict (ie. competition individuality, substantial investment, serious damage or market failure), otherwise the freedom to imitate in the market would be hindered.

Persons

Doctoral Student

Wenmin Wang

Doctoral Supervisor

Prof. Chen Li

Main Areas of Research

Kohärenz von IP-Rechten und Lauterkeitsrecht