2. Inappropriate business practices 2.1. Consumer protection issues 2.1.1. Deception and consumer protection 2.1.2. Specific questions on misleading practices and misleading advertising 2.2. Unfair commercial practices 2.2.1. Unfair commercial practices in general 2.2.2. Specific questions on unfair practices 2.2.3. Digression: Industrial Espionage and Betrayal of Trade Secrets In addition to legal law, the United States is a member of the International Union for the Protection of Industrial Property (the «Paris Union»), created in 1883 by the Paris Convention. This Convention is a multilateral treaty governing the international protection of patents and trademarks and the prevention of unfair competition in international trade. All administrative power belongs to WIPO – World Intellectual Property Organization, an agency founded by the United Nations in 1967. The organization`s headquarters are located in Geneva, Switzerland. By far the most important international agreement is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
This Treaty harmonises the intellectual property laws of the Member States. It was negotiated in 1994 during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). More than 150 countries are parties to the agreement29. In addition, Congress has the power to invalidate state laws that conflict with federal laws and the Constitution. The supremacy clause[14] creates this corresponding principle, known as «pre-emption». Under the supremacy clause, federal law can replace any conflicting state law or inconsistent state order. But it is not only Congress that has the power to anticipate state law: the courts (and ultimately the Supreme Court) also have the power to decide whether state law (judges or legislators) is contrary to the federal Constitution or other regulations.15 The United States Congress and the fifty state governments of the United States have passed laws against unfair trade practices.16 In addition, there is a broad common law of both federal and state jurisprudence.17 Much of the state`s law27 is guided by federal laws or administrative business regulations, thus giving federal policy local application. However, state law also affects business practices in ways unknown to common law or federal law.
Two of the most striking examples are state laws that protect distinctive marks from «dilution» (i.e., no misleading imitation) and state laws on revenue under cost. Anti-dilution laws protect the advertising value of distinctive features by prohibiting other companies from using the same or a similar trademark, although they do not create confusion about goods and services, but only dilute the effect of the original symbol. Lower-cost sales laws are intended to complement federal antitrust laws by prohibiting unfair pricing practices that can be characterized as antitrust violations.28 equate foreign imports with domestic enterprises while protecting domestic enterprises from unfair trading practices by importers. Export trade legislation31 aims to protect domestic exporters from discrimination against foreign states and unfair trading practices by other domestic exporters31 32. Going back to federal law, one of the most important laws regarding UTPs is the Lanham Act.18 In general, this Federal Trademark Act, enacted in 1946, provides for a trademark registration system and protects trademark owners from the use of similar marks in the event of confusion or dilution of the strength of a strong trademark.19 Section 43(a)20 of the Act provides a legal remedy for the form of false advertising that has not reached the common law – that is, false or misleading statements in commerce that do not constitute defamation or denigration.21 As the law of unfair commercial practices is a cross-cutting issue, other areas of law must also be taken into account in order to fully understand the issue in question. Like the Lanham Act, antitrust laws can provide parties with remedies that are not available at common law. While the Sherman Antitrust Act22 originally prohibited any direct or indirect interference in the freely competitive intergovernmental production and distribution of goods, the Clayton Act23 expanded the scope to include price discrimination, tied selling agreements and exclusive distribution agreements. Other antitrust laws include the Federal Trade Commission Act24 and the Robinson-Patman Act25. 1. Sources of unfair commercial practices law and historical development 1.1. Common law sources 1.2.
Legal, constitutional and contractual sources Some States have adopted laws dealing with certain types of unfair competition. See e.B. Uniform Deceptive Marketing Practices Act. Unfair competition law consists mainly of offences that cause economic damage to a company through a misleading or unfair commercial practice. Unfair competition can be divided into two broad categories: unfair competition does not refer to the economic damage associated with monopolies and antitrust law. What constitutes an «unfair» act depends on the context of the undertaking, the act to be examined and the facts of the case. In addition to protecting contractual and beneficial relationships in general, the English and American courts have also dealt specifically with the protection of commercial relations. It was at this time that the so-called law of unfair competition was born. The term `unfair competition` has been used for the first time in a number of cases involving attempts by one trader to withdraw products of inferior quality to those of another more reputable trader by misleadingly using the trade mark of the other trader. Although the first form of erasure was the misleading use of another merchant`s trademark, the courts soon realized that the filing could also be made by other fraudulent means, such as.
B, the fraudulent replacement or modification of goods requested by a customer. At that time, trademarks became a form of intangible property protected against infringement by the courts of equity. Therefore, the offence of trademark infringement must be distinguished from the offence of palming. From now on, palming off was mainly associated with the misleading substitution or alteration of goods and the misleading imitation of product and business characteristics whose identification function was more or less secondary to another commercial function. Suppose a car manufacturer that gets angry at the constant ridicule of one car magazine about its cars launches a competing magazine with a similar name and layout, copies the stories of the other newspaper, attracts employees, advertisers and subscribers of the other magazine by offering them higher salaries and lower advertising and subscription rates, and finally manages to: to force his critical opponent to close down. Has the car manufacturer committed unfair commercial practices for which the owners of the car magazine can appeal? Or did the manufacturer act permissiblely in the magazine attack? Can we also say that the magazine has engaged in an unfair commercial practice by definitively ridiculing cars and their manufacturer2? Two common examples of unfair competition are trademark counterfeiting and embezzlement. The right to publicity is often invoked in relation to misappropriation of funds. Other practices that fall within the scope of unfair competition are: The legal law of unfair commercial practices is part of the broader legal and administrative law of trade regulation. It is often closely linked and, in some cases, even merges with antitrust law and consumer protection. The Unfair Trade Practices Act is the result of loopholes in the Common Law of Unfair Competition. The common law, for example, proved to be totally unequal in the case of misleading advertising: the common law was unable to create an effective remedy against misleading advertising that did not identify its commercial victim because such practices were often more of a public injustice than a private one. .