EC law

The relationship between EC law and English law has some uncertainty over: General prohibitions over unfair conduct like disparagement of competitors ; and Prohibitions on making special offers, low prices which includes loss-leading and discounting. Though there exists specific harmonization in trade marks between EC law and English law, there is lack of harmonization in the surrounding area of unfair competition. For instance, the First Council Trade Marks Directive is illustrated to be without prejudice to the application of unfair competition laws as in the case of software directive and planned data base directive.

It would be impossible to advise wholly on the application of law to the business in each of this case as regards to software, brand name, design and database protection without considering the existence of national unfair competition law. Thus, the lack of harmonization of unfair competition is not only a concern in its own right, but it also obstructs from efforts to harmonize neighbouring areas of laws. Hence it is suggested that there is a need for introduction of separate unfair competition law in UK which may be on the lines of European Unions directives.

The present tort law on unfair competition in UK is having some limitation. Both under registered trade mark infringement and passing off, relief may not available on instantaneous basis and needs more time from 12 to 18 months for obtaining injunction in passing off case. Further, relief under passing off may not be available until reputation and goodwill can be fostered and may be impossible to obtain without the period of use. As such, there is no protection at all against for slavish copying.

If the consumers have not identified the trade mark at the point of sale, then it may be not possible to prove that there has been passing off. In Bostik Ltd v Sellotape GB Ltd, plaintiff customers did not identify ‘Blu-tak’ product until they had previously purchased. The ‘Blu-tak’concern may warrant a blockade for proving passing off if the ‘hidden’ pattern or shape is copied but at the same time if the package has not been copied.

Since the United Kingdom is not operating in deposit –based system and in its place examines the registrability of a trade mark before awarding registration, there appears little that can be done in the background of registered trade mark protection , short of moving to quicker examination relied on absolute rather than relative grounds for registrability. CONCLUSION; A broader unfair competition law should be legislated in UK thereby adopting the misappropriation principle laid down by U. S Supreme Court in the case INS v AP as current UK passing –off laws is not punishing the infringements.

Applying the principles laid down in the INS case would cover the following areas; Effort and time had been expended in developing a new product, a new look or shape or container for a store or restaurant. The outcome of the work was somewhat which had or would in the future have commercial values against competitors; and Misappropriating it offered the infringer an unfair advantage since it prevented the individual who developed it from owing it exclusively and thus negates him of the return on his investment. In INS case, the doctrine of reaping without sowing was first shaped. Thus unfair competition includes the following;

Unjust enrichment Stealing others property Misappropriation of commercial intangibles Accountable unfair behaviour, despite of any property right. Passing off without the deception or confusion requirement. To avoid any frivolous litigation , a British court declaration of reaping without sowing actionable per se is remote , unless it finds that what the defendant is harvesting is in fact the plaintiff’s property. Thus , by adopting misappropriation doctrine , UK unfair competition law would be able to at par with modern anti-trust law or competition law and would offer protection against those who wish to ‘free-ride’ on others investments.

An unfair competition law of misappropriation tempered by functionality could offer solution to other areas where intellectual property rights sit uncomfortably beside competition law doctrines or inoperability demands, as in the case of computer software products. There were number representations for introducing a comprehensive law of unfair competition in the United Kingdom but such requests seem to have fallen largely on deaf ears despite of large number of representations in favour of such law.

Thus, from the above, it is clearly established that the existing Passing-off is fluid and is constantly developing. Hence, U. K should employ US misappropriation doctrine as a template for a harmonized and modern unfair competition law despite of dealing in vague notions of honest business practices or good faith.


Anna Booy, ‘A Half-Way House for Unfair Competition in the United Kingdom –A Practitioner’s Plea’: Opinion [1991] 12 EIPR 439 Anna Booy, ‘A Half-Way House for Unfair Competition in the United Kingdom’ A Practitioner’s Plea’: Opinion EIPR [1991] 12 439