LLAW6132 Chap.8 Unfair Competition: Article 10bis and Legal Traditions
Unfair Competition: Article 10bis and Legal Traditions
A treaty obligation built on a general clause
The Paris Convention lists the repression of unfair competition among the objects of industrial property and binds Union countries to give effective protection against it.
Article 10bis defines it as any competitive act that offends honest practices in industry or commerce, a standard read nationally as honest trade usage, good faith or professional correctness, and extending to professional services.
TRIPS Article 39 builds its trade secret protection on the same clause.
Three named acts
Article 10bis(3) names acts creating confusion with a competitor's establishment, goods or activities; false allegations discrediting a competitor; and indications liable to mislead the public about the nature, manufacturing process, characteristics, suitability or quantity of goods.
The list is illustrative, so conduct outside it can still offend the general clause.
The WIPO Model Provisions
WIPO's 1996 Model Provisions widen the frame. They extend the rule to any act or practice, accept that an omission can be unfair, add damage to goodwill including dilution of a product's appearance or a celebrity's or fictional character's reputation, and include secret information.
Regional instruments, including the EU directives on misleading and comparative advertising and on unfair commercial practices, sit alongside them.
Two traditions and a third model
The common law asks about free competition and customer confusion and works through passing off, contract, defamation and injurious falsehood, valuing freedom to compete above absolute fairness.
The civil law asks about honest usages of trade and reaches comparative advertising, pricing conduct, slavish copying and parallel imports, valuing fairness above free competition. US law combines federal regulation, state statutes and common law fraud around a reasonable consumer test.
What this chapter covers
- 01
Unfair competition as industrial property under Paris
- 02
The honest practices general clause
- 03
Confusion, discrediting and misleading
- 04
The WIPO Model Provisions and omissions
- 05
Dilution of goodwill and secret information
- 06
Common law heads against the civil law list
- 07
The US reasonable consumer test
Worked example · free
Silence as unfair competition
- 3Test the conduct against the Article 10bis limbs.
- 3Apply the Model Provisions on omissions.
- 2Conclude on how the two frameworks differ here.
Key terms
- Passing Off
- The common law action protecting goodwill against misrepresentation that causes customer confusion.
- Slavish Imitation
- Close copying of a competitor's product, which some civil law systems treat as unfair even without confusion.
- Dilution
- Damage to the goodwill or distinctiveness attached to a sign, a product's appearance or a celebrity or fictional character, recognised in the WIPO Model Provisions.
- Injurious Falsehood
- The common law action for false statements about a trader's goods or business that cause loss.
- Bait and Switch
- Advertising one product to attract buyers and then selling them another, listed among unfair acts in US law.
Unfair Competition: Article 10bis and Legal Traditions FAQ
Is unfair competition an intellectual property right?
The lecture raises the question. Paris treats its repression as part of industrial property, but it protects a trader's position against dishonest conduct rather than granting exclusive ownership of a creation, which is why it can reach conduct no registration covers and why TRIPS builds trade secret protection on it.
Why does the civil law catch comparative advertising that the common law allows?
Because the traditions rank values differently. The civil law puts fairness and honesty ahead of free competition and can treat comparative advertising as unlawful even without damage, while the common law puts freedom to compete first and intervenes mainly where there is customer confusion or a false statement.
What test does US unfair competition law use?
Whether a reasonable consumer would be likely to be misled. It is applied under federal regulation, state statutes such as California's consumer, unfair competition and false advertising laws, and common law fraud and misrepresentation, across conduct from false advertising to trade libel.
Exam move
Take one set of facts, a lookalike package, and write the claim a common law court and a civil law court would each recognise. Then add the WIPO Model Provisions as a third column; the gaps between the columns are what comparative questions ask about.
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