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Davis, Jennifer --- "The role of confusion in unfair competition law: a comparative perspective" [2019] ELECD 1400; in Frankel, Susy (ed), "Is Intellectual Property Pluralism Functional?" (Edward Elgar Publishing, 2019) 129

Book Title: Is Intellectual Property Pluralism Functional?

Editor(s): Frankel, Susy

Publisher: Edward Elgar Publishing

Section: Chapter 5

Section Title: The role of confusion in unfair competition law: a comparative perspective

Author(s): Davis, Jennifer

Number of pages: 24

Abstract/Description:

Providing a remedy against a misrepresentation is central to unfair competition law. This chapter is concerned with unfair competition law in four jurisdictions: the UK, France, Germany and the United States. It argues that across these jurisdictions there are at least two different approaches to identifying an actionable misrepresentation: approaches which often coexist within national boundaries, although generally one will predominate. The first approach privileges the importance of consumer confusion for finding an actionable misrepresentation. The second privileges the nature of the misrepresentation, and looks at its effects on the claimant’s goodwill to determine if it is actionable. The chapter concludes that since damage to goodwill is harder to prove than mere confusion, it is the UK and France, who take this latter approach, whose unfair competition laws leave room for greater market freedom not just for businesses who take advantage of such laws but also for their rivals.