Publications

This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.

This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.