Dragan Zlatović, LLD

COMMON LAW CONCEPT OF PROTECTION
AGAINST UNFAIR COMPETITION

Summary

The author analyzes the concept of protection against unfair competition in the Anglo-Saxon legal systems. The concept of passing off lies at the heart of the system of trademark protection in the common law countries. The essential elements of a traditional passing off claim are: 1) goodwill-an ill-defined term that refers to the consumer's desire to purchase goods because of their association with a mark, 2) misrepresentation as to source, and 3) a likelihood of damage to goodwill as a result of the misrepresentation. In the USA and the UK unfair competition, attempts to enforce a certain level of honest practices in industrial or commercial matters. In USA an injured party brings Federal unfair competition claims under section 43(a) of the Lanham Act. Unlike trademark infringement claims under the Lanham Act, unfair competition claims do not require any federally registered marks. There is, in English law, no recognised general tort of unfair competition. In its current state of development the common law does not recognise a general right in one trader to complain of damaging dishonest practices commited by his competitors. As a result, over the years, the law of passing off has become an important element in preventing some forms of unfair competition.

Key words: unfair competition, trademark, passing off, goodwill