INTA News

INTA Publishes 2023 Edition of ‘Unfair Competition Quick Guide’

Published: October 18, 2023

INTA’s Unfair Competition (UC) Committee, Advocacy Subcommittee, has published a second revision and update of the Unfair Competition Quick Guide. The Guide is a summary of unfair competition (UC) laws around the world. The 2023 edition, which is expanded in scope from the first iteration published in 2021, reveals that all jurisdictions surveyed prohibit various forms of UC, and although national statutes or governing laws are diverse in nature, so are the available remedies.

The Unfair Competition Quick Guide summarizes results of a survey of practitioners regarding the UC laws of their respective jurisdictions. The document covers 58 jurisdictions, from every continent except Antarctica.

The Advocacy Subcommittee carried out the most recent surveys during the 2022‒2023 Committee Term and published the easily accessible guide as a practical, high-level resource for brand owners and practitioners seeking a basic overview of a specific jurisdiction’s UC laws. The Unfair Competition Quick Guide is best used by practitioners who wish to understand the application of UC laws in jurisdictions around the world.

The 2023 edition provides information on nine issues with respect to each jurisdiction. These issues cover the origins of each jurisdiction’s UC laws, proper parties, remedies, venues, limitation periods, and more.

The responses revealed that all jurisdictions surveyed have laws that prohibit various forms of UC and incorporate many of the same basic principles. There are, however, interesting distinctions, as follows:

  • The extent to which conduct is defined as “unfair competition” varies. Some jurisdictions have laws specifically referring to “unfair competition” (e.g., Japan, the Republic of Korea, and Switzerland) while others treat such conduct as falling within trademark law, common law torts, consumer protection laws, or laws regulating advertising (e.g., Canada, Singapore, and the United Kingdom,). In other instances (e.g., Russia and Uruguay), international standards in the Paris Convention for the Protection of Industrial Property have been adopted domestically in conjunction with other laws. Moreover, not all types of legal concepts and claims discussed, such as “passing off” or “comparative advertising,” are equally well known in all jurisdictions, and the nomenclature may be subject to different understandings and interpretations.
  • Even when jurisdictions have laws that refer to “unfair competition,” the boundary of what is included can vary.
  • Remedies vary. All jurisdictions surveyed provide for the possibility of claiming damages where UC has been proven, yet the likelihood of recovering such damages may vary. Injunctive relief is available in most jurisdictions. Additional forms of relief may be available in some jurisdictions, such as a public apology in Malaysia.
  • The most dramatic variation in available remedies concerns the application of criminal law to acts of UC. Criminal sanctions may be a consequence of UC in some jurisdictions, including China, Germany, Greece, Ireland, Japan, Norway, Romania, and Switzerland.
  • Jurisdictions define differently the circumstances under which comparative advertising is prohibited.
  • The key venue question is whether a jurisdiction has a tribunal or government authority involved in the particular conduct at issue. The courts are the primary or exclusive venue for complaints related to UC in some jurisdictions (e.g., Australia, Austria, Croatia, and Germany. In others, government investigative units or tribunals are authorized to prosecute or resolve certain disputes (e.g., the Czech Republic, Nigeria, and Spain).
  • Most jurisdictions allow affected competitors to assert UC claims to courts or competition authorities. Where UC is covered by consumer protection laws, the right to sue may be restricted to consumers (e.g., Thailand).
  • In principle, to the extent that UC claims are not themselves treated as intellectual property (IP) claims, they may be asserted in parallel. A few jurisdictions restrict this right in the sense that the claims shall not overlap (e.g., Greece and Spain) or that the UC claims shall be subsidiary to IP right claims (e.g., Lithuania). Most jurisdictions do not allow damages to be claimed twice, but there are exceptions (e.g., Greece, Italy, and Paraguay).
  • In most surveyed jurisdictions, a UC claim may still be asserted irrespective of whether a related IP right exists. Some jurisdictions, however, prohibit UC claims for expired IP rights (e.g., Austria; the Czech Republic; Hong Kong SAR, China; India; Ireland; Malaysia; Panama; Romania; Ukraine; and the United States).
  • Generally, the limitation period for bringing a UC claim is calculated either from the day a plaintiff became aware of the wrongful act or from the day the cause of action arose. The range of limitation periods varies from 6 months to 20 years depending on the infringing act.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2023 International Trademark Association

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