CIPIL Conference: Unfair Competition: Where Are We Now and Where Are We Going?

English law has not, to date, recognised an action for unfair competition, providing instead for protection of traders against particular categories of wrongs (such as passing off, malicious falsehood, breach of confidence, inducing breach of contract) and protecting consumers from misleading and deceptive trading through distinct criminal law regimes. Legal systems in continental Europe have typically taken a different approach: providing traders and consumers alike with protection against unfair competition, an extensive notion extending beyond wrongful misrepresentation as to the origin or quality of a trader’s goods or services so as to include disparagement and free-riding.

Although proposals for the wholesale harmonization of the law of unfair competition in Europe have hitherto proved unsuccessful, the European legislature has begun regulating particular behaviour in the sphere of business-to-business competition through the Misleading and Comparative Advertising Directive, the Trade Marks Directive and Regulation and, arguably, through the Database Directive. More sweeping harmonization has occurred in the business-to-consumer field through the Unfair Commercial Practices Directive 2005, recently implemented in the UK through partial repeal of the Trade Descriptions Act 1968 and its replacement with the Consumer Protection (Misleading Practices) Regulation 2008. The 2005 Directive hints that the Commission will consider further harmonisation in the business-to-business field, possibly using the Directive as a template. In implementing the Directive, some member states have anticipated this possibility and given rights of action to traders.

The presentations at this conference will explore the current situation in the United Kingdom and Europe, and look at the prospects for reform. Questions addressed include:

What is the current protection granted to traders in the UK against unfair competition? Does the UK meet its international obligations?
What are the differences between the protection afforded to traders in the UK and that granted to them in continental Europe?
Why does the UK distinguish between business-to-business and business-to-consumer practices?
What is the experience with harmonization to date? What problems is the harmonization project encountering in relation to comparative advertising?
Is the ECJ developing a concept of ‘unfair competition’ in its interpretation of trade mark defences?
What is the meaning of ‘unfair competition’ in the Rome Regulation on applicable law?
Where should we go from here? What are the experiences of other European countries? How does a broad unfair competition law sit with carefully delineated intellectual property rights? Is the UCP Directive a good model for further harmonization?

Chair: Mr Justice Richard Arnold. Speakers include Henry Carr QC, 11 South Square; Dr Jennifer Davis, Herchel Smith Lecturer in Intellectual Property Law, Fellow of Wolfson College, Cambridge; Jörn Feddersen, Hamburg Court of Appeal; Geoffrey Hobbs QC; Professor Geraint Howells, Professor of Law at the University of Manchester; Lord Justice Robin Jacob; Professor Ansgar Ohly, Professor of Law at the University of Bayreuth; Professor Dirk Visser, Professor of Law at the University of Leiden; Professor Christopher Wadlow, Professor of Law at the University of East Anglia.

Sponsored by Emmanuel College, Cambridge

Price £80 (with special rates of £60 for academics and £40 for students).

Please see below for conference programme and contact Gaenor Moore tel 01223 330081 for more information.  A booking form can be downloaded here

Programme
09.00 - 09.30 REGISTRATION
Chair: Mr. Justice Arnold

1. Where Are We Now? National Regimes
10.00 - 10.30 Dr Jennifer Davis, Unfair Competition and Its Protection Under English Law 10.30 -10.45 Professor Ansgar Ohly, Unfair Competition under German Law: Foundations, Recent Developments and Differences from English Law 10.45 - 11.00 Professor Dirk Visser, Dutch Law: The Experience of Having a Catch All, Slavish Imitation Provision 11.00 - 11.15: Discussion. What Are The Chief Differences Between The Laws of Member States? 11.15 - 11.45 COFFEE
2. Where Are We Now? European Harmonization
11.45 -12.15 Professor Ansgar Ohly, The Misleading and Comparative Advertising Directive: The Experience of Harmonized Unfair Competition Law 12.15 - 12.45 Professor Geraint Howells, The Unfair Commercial Practices Directive: A Model for a Future European Unfair Competition Law 12.45 - 13.00 Discussion: Are We Heading Inexorably Towards a European (B2B) Unfair Competition Law? 13.00 - 14.00 LUNCH
3. Unfair Competition - Special Topics
14.00 - 14.30 Professor Chris Wadlow, Unfair Competition in the Rome Regulation 14.30 - 15.00 Geoffrey Hobbs QC, Trade Mark Exceptions and 'The Duty to Act Fairly': The ECJ as An Engine in the Development of Unfair Competition 15.00 - 15.30 Henry Carr QC, Look-Alikes and Smell-Alikes under English Law and the Scope of the Obligation under article 10 bis of the Paris Convention 15.30 - 15.45 Discussion: How is Europe Coping with the Fragments of Unfair Competition Law with Which We Have Substantial Experience? 15.45 - 16.00 TEA/COFFEE
4. Normative Considerations
16.00 - 16.20 Professor Dirk Visser, Unfair Competition As the Basis of All Intellectual Property Rights/The Relationship Between Unfair Competition and Intellectual Property Rights 16.20 - 16.40 Lord Justice Robin Jacob, An English Judge’s View of Unfair Competition 16.40 - 17.00 Jörn Feddersen, A German Judge’s View of Unfair Competition 17.00 - 17.15 Discussion: Should the UK Embrace or Resist Unfair Competition?
17.30 CONFERENCE CLOSES – Drinks reception sponsored by Cambridge University Press to follow in Atrium

This Conference is awaiting accreditation from the Bar Standards Board for CPD hours and has been awarded 5½ CPD hours by the Law Society and 6 CPD points by The Institute of Trademark Attorneys.