Intellectual Property and Unfair Competition in a Nutshell
Authors:
McManis, Charles R. / Friedman, David J.
Edition:
7th
Copyright Date:
2013
20 chapters
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Preface 8 results (showing 5 best matches)
- In light of these three developments in the 1990s, it seemed appropriate to revise the title of the 4 and succeeding editions of this Nutshell to acknowledge that both the law of intellectual property and the law of unfair competition have come into their own. As emphasized in Chapter One of this Nutshell, however, the underlying premise of this book continues to be that to understand why the law creates specific intellectual property , one must also understand how the law has gone about determining what constitutes unfair competition—i.e. a commercial . Both historically and conceptually, the development of intellectual property rights can be seen as an outgrowth of the law governing fair and unfair competition, and both bodies of law seek to distinguish between fair and unfair trade practices.
- Students of intellectual property and unfair competition law must thus understand how these two conceptually distinct bodies of law nevertheless operate interdependently. The organization of this Nutshell is designed to assist in that understanding, as the two parts of the book predominantly concerned with the protection of intellectual property (namely Parts II and III) are bracketed by the two parts of the book predominantly concerned with the law of unfair competition (namely Parts I and IV). The goal throughout is to help law students understand both the distinctive policies underlying, and the linkages between, the law of intellectual property and unfair competition.
- edition of Intellectual Property & Unfair Competition in a Nutshell is made necessary by a number of recent developments in intellectual property and unfair competition law—most notably, the Leahy-Smith America Invents Act (AIA) of 2011 (P.L. 112-29, 125 Stat. 284-341), which has substantially revised U.S. patent law. The preface to this new edition offers a fitting opportunity to recall that the first edition of this volume was first published (albeit under a different title) exactly thirty years ago. The number of editions required since 1982, as well as a title change after the third edition, both hint of the dynamism in the law of intellectual property and unfair competition over past thirty years.
- The first three editions were entitled “Unfair Trade Practices in a Nutshell.” However, the Preface to each edition conceded that “unfair trade practices” was simply one of many possible names for a new and distinct body of law that seemed to be coming into being, and that other phrases, such as “unfair competition” and “intellectual property” had likewise been used to identify all or parts of this new body of law. Subsequent to the third edition in 1993, a number of important domestic and international developments in the law of intellectual property and unfair competition made it apparent that a more precise title was needed.
- In 1995, the American Law Institute published the Restatement of the Law, Third, of Unfair Competition. This was the ALI’s first independent restatement of the law of unfair competition, which had originally been covered in the Restatement of Torts, but was omitted for the Restatement, Second, of Torts, on the ground that the law of unfair competition had evolved to the point that it was no longer appropriate to treat it as a mere subcategory of the law of Torts. The ALI noted that “the term ‘unfair competition’ now describes an array of legal actions addressing methods of competition that improperly interfere with the legitimate commercial interests of other sellers in the marketplace, including actions for passing off, deceptive advertising, and the infringement of trademarks.” The ALI also noted that there had been a parallel increase in the significance of intellectual property, including that defined through the law of unfair competition.
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Chapter 1. Introduction to the Law of Intellectual Property and Unfair Competition 88 results (showing 5 best matches)
- The law governing intellectual property and unfair competition seeks to protect the trade relations of businesses from undue interference by other businesses, while at the same time promoting bargaining and competition among businesses. The interest in protecting trade relations, as we shall see, is in constant tension with, and thus must be balanced against, the interest in promoting bargaining and competition. A useful approach to the study of the law of intellectual property and unfair competition, accordingly, is first to identify the particular trade relations and broader relational interests which are the subject of legal protection and then to distinguish those forms of interference which are prohibited as unfair from those which are privileged as legitimate bargaining or competitive practices.
- Notwithstanding the limited judicial use of the prima facie tort principle in deciding specific cases, it does serve to remove nominate intentional torts from their definitional strait jackets and expose an underlying unity in the common law of unfair competition. It also serves to expose two assumptions which were central to the development of a private judge-made law of unfair competition but which are increasingly being called into question. First is the assumption that the courts in the context of private litigation can adequately balance the public interest in maintaining both freedom and stability of trade relations. Second is the assumption that the balance struck by the courts can be adequately expressed in conventional private judicial remedies where unfair bargaining or competitive practices are found. An emerging body of public law regulating interstate and international trade, as well as a rapid expansion of state, federal, and international law governing intellectual
- If it is useful to speak of a law of intellectual property and unfair competition at all, it must be described as a creature, not merely of the judicial and legislative branches of state and federal government, but of the Constitution that binds those governments together and the international agreements that govern U.S. relations with other nations. The very diversity of the sources of the law of intellectual property and unfair competition compels a consideration of their underlying objectives.
- Trade regulation law not only supplements the private remedies of the common law but also provides for public (i.e., government) regulation of trade practices and at points actually merges with the larger law of antitrust and consumer protection. Likewise, some of the judge-made law of unfair competition, namely that involving trademarks and trade secrets, is frequently described, together with the federal statutory law of patents and copyrights, as comprising a separate and distinct law of intellectual property. As we shall see, however, the term “intellectual property” is just as misleading as the term “unfair competition,” as it falsely suggests that similarities among the various forms of intellectual property are more pronounced than the differences, when in reality the opposite is the case.
- This hypothetical case, a 21st Century equivalent of the facts in , 140 N.E. 203 (N.Y.1923), illustrates the principal topics that will be covered in this book—namely, interference with prospective and existing contractual relations (Part I); product, service and business misidentification (Part II); appropriation of intangible business assets (Part III); and injurious promotional and pricing practices (Part IV). The underlying premise of this book is that to understand why the law creates specific intellectual property , one must first understand how the law determines what constitutes a commercial Both historically and conceptually, intellectual property law is an outgrowth of the law of unfair competition. Thus, the two parts of this book predominantly concerned with the law of intellectual property (Parts II and III) are bracketed by the two parts of the book concerned with the law of unfair competition (Parts I and IV).
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Chapter 8. Injurious Promotional Practices 135 results (showing 5 best matches)
- The International Trade Commission (ITC) has been given authority under § 337 of the 1930 Tariff Act, 19 U.S.C. § 1337, to issue exclusion orders and cease and desist orders to prevent unfair methods of competition connected with the importation of articles into the U.S. or their subsequent sale, where the requisite injury, including destruction of or substantial injury to or prevention of the establishment of an efficiently and economically operated industry in the U.S., or antitrust injury, can be shown. The Omnibus Trade and Competitiveness Act eliminated the injury requirement where a practice involves infringement of a federal statutory intellectual property right. The ITC’s authority to prohibit unfair methods of competition in imports has been broadly construed to include not only infringement of statutory intellectual property rights and antitrust violations but also a variety of common law acts of unfair competition, such as passing off and trade secret misappropriation, as...
- Although the principal purpose of the Wheeler–Lea Amendments was to grant the FTC specific authority to protect the consumer from deceptive acts or practices, the amendments also had the effect of legislatively confirming prior case law which had held that business methods need not threaten a reduction in competition in order to be “unfair methods of competition” within the meaning of the FTC Act. These cases had held that methods that tend to eliminate honesty in competition no less than those that tend to eliminate competition itself are unfair methods of competition.
- The prohibition against “unfair methods of competition in commerce” in §5 of the FTC Act, 15 U.S.C. § 45, became the linchpin of the FTC’s authority to regulate promotional practices. While the Supreme Court initially declared that it was for the judiciary and not the FTC to say what constitutes an “unfair method of competition,” it subsequently made it clear that it would give considerable weight to the FTC’s views. Thus, for all practical purposes, the FTC has had the power not only to prevent “unfair methods of competition” but also to say what that phrase means. This it has done both through administrative adjudication and through the promulgation of administrative rules. The International Trade Commission has more limited authority to issue exclusion orders or cease and desist orders (subject to review by the U.S. Trade Representative and the President) to prevent unfair methods of competition in the import trade of the U.S.
- creating a special government regulatory agency. Although criminal statutes modeled on the Printers Ink Model Statute (so named because it was drafted for an advertising industry trade journal named “Printers Ink”) have been widely adopted, they have generally been ineffective—due partly to the strict construction given them by the courts on account of their penal nature and partly to the failure of public prosecutors to enforce them. The enforcement efforts of state and federal regulatory agencies, by contrast, have been more extensive and wideranging. The most prominent of these government agencies is the Federal Trade Commission, which has been given broad authority to prevent unfair methods of competition and deceptive or unfair acts or practices in or affecting commerce. See 15 U.S.C. § 45. The International Trade Commission has been given somewhat narrower authority to regulate unfair methods of competition and unfair acts in the import trade of the U.S. See 19 U.S.C. § 1337.
- To determine what constitutes an unfair act or practice or unfair method of competition within the meaning of the FTC Act it is thus necessary to consider in the larger question of what promotional practices have been declared, either by statute, common law or otherwise, to be unfair. See Part B. 2. infra. Even in the absence of such a declaration, however, practices that cause substantial consumer injury not outweighed by any countervailing benefits to consumers or competition nor reasonably avoidable by consumers will be found to be unfair. See
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Outline 99 results (showing 5 best matches)
- C. A Suggested Approach: The Law of Intellectual Property and Unfair Competition in Functional Context
- A. Sources of the Law of Intellectual Property and Unfair Competition
- Chapter 1. Introduction to the Law of Intellectual Property and Unfair Competition
- B. Objectives of the Law of Intellectual Property and Unfair Competition
- (2) Federal Trade Commission Regulation of Unfair Acts or Practices and Unfair Methods of Competition
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Chapter 9. Injurious Pricing Practices 88 results (showing 5 best matches)
- Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, forbids unfair methods of competition or unfair acts in the import trade. While the principal use of this provision has been to prevent the importation of articles that infringe U.S. intellectual property rights, the ITC has also used this provision to assert jurisdiction over various types of antitrust claims, including predatory pricing. Where such conduct threatens or prevents the establishment of a U.S. business, the ITC excludes the article from this country or issues a cease and desist order. Either action by the ITC may be overturned by the President within 60 days. However, the ITC may not use its authority under § 1337 to address dumping or countervailing duty cases as such.
- The most important element for purposes of understanding how § 2(a) of the amended Clayton Act functions as a piece of unfair competition legislation is the final element--that limiting actionable discriminations in price to those discriminations whose effect is to bring about one of three types of competitive injury. The first two types of competitive injury (namely the lessening of competition and the creation of monopoly) are simply carried over from the original § 2 of the Clayton Act and reflect the original antitrust goals of that Act. The third type of competitive injury, however, reflects the RPA’s broader concern with preventing injury to individual competitors. Because injury of an individual competitor will generally occur well before any overall lessening of competition or tendency toward monopoly, litigation under the RPA has largely been concerned with injuries of the third type. As the statutory language indicates, this type of injury can occur at the seller level of
- As we have seen, those pricing practices made actionable at common law or by statute may be divided into two groups: Price cutting and price discrimination. Actually, price discrimination is simply a special form of price-cutting—namely price cutting. Price cutting and price discrimination are actionable, of course, where they further a predatory purpose—i.e., the lessening of competition or the purely malevolent injury or destruction of another business. Some forms of price cutting and price discrimination, however, may be actionable even though the objective is not predatory. It is the practice itself and not the objective that is deemed unfair.
- Ironically, although the principal impetus behind the Robinson–Patman Act (RPA) was to prevent chain stores and other large volume buyers from using economic coercion to exact price concessions, the Act focuses primarily on the liability of the discriminating seller and deals only secondarily with the liability of the favored buyer. The reason, as we have seen, is because at the time the RPA was enacted, the Supreme Court took a restrictive view on the extent to which a buyer is engaged in commerce that Congress is empowered to regulate. Thus, the only sections of the RPA which apply to a buyer are § 2(c), which makes it unlawful for a buyer to receive unearned brokerage or an allowance in lieu thereof, and § 2(f), which makes it unlawful: (1) for a buyer engaged in commerce (2) knowingly to induce or receive (3) a discrimination in price prohibited by § 2 of the Act. The FTC and the courts have concluded ...the knowing inducement or receipt not only of a per se... ....e. a price...
- While these state sales-below-cost statutes vary widely from state to state, they most frequently forbid sales below cost where the intent is to destroy competition or to injure a competitor. Some statutes forbid sales below cost where either the intent or the effect is to destroy competition or to injure a competitor, while a few statutes purport to forbid all sales below cost without regard to intent or the effect on competition or competitors. These prohibitions may apply to all sellers or only those at specified levels of the distributive chain and may extend to sales of all types of commodities or services; to sales of commodities alone; or to sales of selected commodities, such as beer, liquor, wine, cigarettes, and gasoline. See, e.g.
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Chapter 4. Use of Similar Trademarks and Trade Names 231 results (showing 5 best matches)
- In general, U.S. courts have been remarkably reluctant to recognize that Article 6 of the Paris Convention, the Lanham Act itself, or the common law of trademarks in the U.S. imposes any specific legal obligation on U.S. courts to protect foreign marks that are well-known in the U.S., see , 482 F.3d 135 (2nd Cir.2007), finding no legal obligation under either the Paris Convention or federal law to protect the well-known marks of nationals of Paris Convention members, but certifying to the N.Y. Court of Appeals the question whether N.Y. law permits the owner of a famous mark or trade dress to assert property rights therein by virtue of the owner’s prior use of the mark or dress in a foreign country; , 880 N.E.2d 852 (2007), answering “Yes” to the certified question, but explicitly refusing to recognize “the famous or well-known marks doctrine, or any other new theory of liability under the New York law of unfair competition,” while merely reaffirming that when a business, through...
- of the Paris Convention, members are obliged to refuse to register or cancel registration and prohibit the use of a trademark which constitutes a reproduction, an imitation, or a translation liable to create confusion with a mark that is well-known in that country as being already the mark of a person entitled to the benefits of the Paris Convention and used on identical or similar goods. See, e.g. , 391 F.3d 1088 (9th Cir.2004), recognizing a famous mark exception to the national territoriality principle, but holding the plaintiff’s Article 6 claim was duplicative of its Lanham Act claim and dismissing its Article 10 claim for unfair competition on the dubious ground that Article 10 does not itself create substantive rights and that the interaction between § 44 of the Lanham Act and Article 10 of the Paris Convention simply results in equal treatment of foreign and domestic parties in trademark disputes. But see Paris Convention, Article 10 ...), stating that the “following acts in...
- An illustration of the distinction between subject matter not covered by federal copyright law and rights not equivalent to federal copyright is to be found in that branch of the common law of unfair competition which protects literary or artistic titles and characters. While there is no constitutional prohibition against federal copyright protection for literary titles, nor for that matter any expressly prohibitory language in the federal copyright law itself, the courts interpreted the 1909 Copyright Act as not extending to literary titles and Congress, by its silence on the matter in the 1976 Copyright Act, has apparently approved that construction. Consequently, states remain free and under their common law of unfair competition have in fact provided legal protection for literary and artistic titles.
- A final class of trade symbols for which proof of secondary meaning has often been required is a polyglot group of distinctive product designs, packaging, service uniforms, vehicles, business premises, literary or artistic titles or characters, sometimes referred to collectively as “trade dress.” Because trade dress did not fit comfortably under the common law’s definition of technical trademarks and trade names, the courts tended to treat the protection of trade dress as a distinct branch of the law of unfair competition, separate from the common law of trademarks and trade names. The PTO and the federal courts, for their part, were initially slow to grant federal trademark protection for trade dress, but have increasingly followed the lead provided by the common law of unfair competition. At the same time, federal patent and copyright law have been found to place certain limitations on common-law protection of distinctive product and business features.
- As the Industrial Revolution progressed, however, the courts began to focus less on the defendant’s deceptive conduct and more on the plaintiff’s rights in the trade symbol. Thus, what began as an off-shoot of the law of deceit has emerged to become part of the law of intellectual property. In the course of that transformation, the terms “trademark” and “trade name” took on two distinct meanings—an older, common-law meaning and a more modern statutory meaning.
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Chapter 6. Appropriation of Publicly Disclosed Intangible Assets 197 results (showing 5 best matches)
- The intangible assets of a business may include not only its trademarks, trade names and business goodwill but also any legally protectable intellectual property, such as inventions, literary or artistic works, or any other commercially valuable ideas or information. What all of these intangible assets have in common is that they are the product of intellectual effort—and often entail a substantial investment of time and money as well.
- The primary purpose of the Chip Act was arguably to stimulate international recognition of chip designs. If so, the Chip Act has succeeded. Japan, various members of the European Union, and other European nations have enacted a law substantially similar to the U.S. Chip Act—and in addition the existing copyright laws of the United Kingdom, Australia, and perhaps the Netherlands and Sweden could presently be found to protect mask works on substantially the same basis as the U.S. Chip Act does. The World Intellectual Property Organization (WIPO) prepared a draft treaty on the Protection of Intellectual Property in Respect of Integrated Circuits (IPIC) in 1985. The TRIPS Agreement requires WTO member countries to comply with most provisions of the (still unratified) IPIC, but also specifies additional minimum standards for the protection of integrated circuit designs. As a domestic matter, however, the Chip Act may have been responding to a non-existent problem. To date, only two...
- As with other forms of intellectual property, patent rights may be assigned or licensed. An assignment transfers ownership of all or some of the patentee’s rights in the invention, while a license merely grants the licensee permission to make, use or sell the invention. Although the patent rights themselves are federally created rights, infringement of which must be litigated in federal courts, the assignment or licensing of patents is largely governed by state contract and property law. Thus, where no diversity of citizenship or federal question exists, patent assignments and licensing agreements will be enforced in state courts.
- The trade relations whose protection is the subject of this chapter and the next are the existing or prospective trade relations of a party who has made an investment of intellectual effort and wishes to exploit that investment. The specific concern in this chapter is with those bodies of law that protect the purely prospective commercial relations of a party who wishes to publicly exploit a product of intellectual effort.
- Brandeis was apparently adverting to the fact that the AP by-laws at the time gave members veto power over applications by competitors for membership in the association. A number of years later, these same by-laws were held to violate the Sherman Antitrust Act. See 405 U.S. 233 (1972) (it was within the power of the Federal Trade Commission to find that the largest and oldest trading stamp company in the country engaged in an unfair method of competition when it adopted the practice of bringing lawsuits for misappropriation—which were almost invariably successful—as a means of suppressing the operation of independent trading stamp exchanges). Cf. , 489 U.S. 141 (1989), in which the Supreme Court held that a state statute prohibiting the unauthorized use of direct molding to duplicate for the purpose of sale any manufactured boat hull made by another conflicted with, and was thus preempted by, federal patent law. See also
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Chapter 7. Appropriation of Trade Secrets and Ideas 56 results (showing 5 best matches)
- In , 948 F.Supp. 684 (E.D.Mich.1996), the court held that § 44(h) of the Lanham Act, which protects foreign nationals against unfair competition, incorporates the substantive provisions of the Paris Convention, and that under Article 10 of the Convention, which requires member countries to provide effective protection against unfair competition-defined, in turn as any act of competition contrary to honest practices in industrial or commercial matters—GM and its German subsidiary have a federal cause of action for misappropriation of trade secrets by former employees of same. See also WTO TRIPS Agreement, Article 39, stating that in the course of ensuring effective protection against unfair competition as provided in Article 10 of the Paris Convention, WTO member countries are also to protect undisclosed information and data submitted to governments or governmental agencies against acquisition, use, or disclosure in a manner contrary to honest commercial practices; ...holding that a...
- In addition to the foregoing private judicial remedies, a trade secret holder may petition the International Trade Commission, which has authority, subject to Presidential review, to issue cease and desist or exclusion orders to bar unfair methods of competition in the import trade, to prevent the importation of goods that misappropriate the trade secret. The Omnibus Trade and Competitiveness Act of 1988 declared one of the primary objectives of U.S. international trade law and policy to be ensuring adequate protection of trade secrets in foreign countries.
- Trade secrets and ideas, like distinctive trade symbols, patents, copyrights and other investments of intellectual effort, may be assigned or licensed. Unlike other forms of intellectual property, however, it is essential that the confidentiality of the secret or idea be maintained. Loss of secrecy, whether due to the neglect of the owner of the secret or idea or to independent discovery or reverse engineering and publication by another business, will result in a loss of rights, except as against those who have expressly agreed to pay royalties for so long as an invention, idea or information is used. See, e.g.
- Comment (b) to 4 Restatement of Torts (First), § 757 (1939) indicated that regular use is a prerequisite for finding that a protectable trade secret exists. Because regular use is not required either by the federal law of patents or the common law of ideas, however, many courts have not demanded regular use as a condition of granting relief in trade secret cases. Accord: Restatement Third, Unfair Competition § 39, comment d.
- The subject matter of state trade secret protection, however, is not limited to inventions; nor is state trade secret law the only body of state law protecting trade values that have not been publicly disclosed. At the same time the law of trade secrets was developing, there emerged a parallel body of law known as the law of ideas, which provided a degree of protection to those who, whether in business themselves or not, submitted ideas to a business for its consideration. As with trade secrets, courts have on occasion characterized such ideas as a protectable form of intellectual property. See, e.g., , 210 F.2d 706 (D.C.Cir.1953) (holding that a person has such a property right in his own idea as enables him to recover damages for its appropriation or use when the idea is original, concrete, useful and is disclosed in circumstances which, reasonably construed, clearly indicate compensation is contemplated if it is accepted and used). Most courts, however, have tended to echo the...
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Chapter 2. Interference with Precontractual and Noncontractual Relations 63 results (showing 5 best matches)
- Just as it is unlawful to defame a merchant or disparage his title to property or the quality of his merchandise, so it became unlawful to palm off inferior quality goods as those of another, more reputable merchant. Together, these three prohibitions contain the seed of much of the modern common law of unfair competition, which protects the public relations as well as the prospective contractual relations of businesses. For that reason, the common law’s protection of those likely to be economically injured by communications made to third persons will be deferred for consideration in Parts II and IV.
- As we have seen, the common law of unfair competition began in fact, if not in name, by delineating various types of actionable economic interference with advantageous relations. Applied to business conduct, these nominate torts amounted to a catalogue of improper business methods. Later, the courts began to prohibit certain otherwise unobjectionable interference with advantageous relations where the purpose behind the interference was purely malicious or predatory (i.e., designed solely to injure). Applied to business conduct, this became a prohibition against certain improper business objectives.
- The Clayton Act and the Federal Trade Commission Act constitute a two-pronged effort to supplement the Sherman Act. The aim of both is to nip anticompetitive practices in the bud, before they blossom into an actual lessening of competition or monopolization. The Clayton Act, as amended by the Robinson–Patman Act, prohibits four specific types of misconduct—namely (1) price discrimination and sales at unreasonably low prices, (2) exclusive dealing and tying arrangements, (3) anticompetitive mergers and acquisitions and (4) interlocking directorates. The FTC Act broadly prohibits conduct that could be said to violate the spirit if not the letter of the antitrust laws as well as any other business conduct that is deceptive or otherwise unfair to consumers or other businesses. (See Chapters 8–9 infra.) For application of U.S. antitrust law to extraterritorial conduct, particularly conduct involving a foreign government, see Chap. 1 supra.
- The common-law prohibition against anticompetitive conduct has largely been superseded by the federal and state antitrust statutes. The Sherman Antitrust Act, 15 U.S.C. §§ 1–2, broadly prohibits (1) contracts, combinations and conspiracies in restraint of interstate or foreign trade and (2) monopolization, attempts to monopolize or combinations or conspiracies to monopolize any part of interstate or foreign trade. In an attempt to give these broad legislative prohibitions a more precise content, the courts have identified certain types of conduct as so inimical to the competitive process and lacking in legitimate purpose that they are never justified and therefore violations of the Sherman Act have historically included horizontal and vertical price-fixing, horizontal division of markets, group boycotts and at least some instances of tying of the sale of one product to the purchase of another unwanted product. The lawfulness of all other restraints on trade is governed by a rule of...
- The presumption against the legality of economically injurious concerted group conduct is embodied not only in the common-law action for civil conspiracy but in the federal antitrust laws, which draw a sharp distinction between the acts of a single business (which are illegal under the antitrust laws only if they constitute an attempt to monopolize any part of trade or commerce) and concerted acts (which are illegal under the antitrust laws wherever they constitute an unreasonable restraint of trade). However, it is not always easy to distinguish individual and concerted action. , 130 S.Ct. 2201, 560 US ___ (2010) (single licensing entity created by separately-owned teams violated §1 as vehicle for concerted activity since teams compete with each other for entertainment revenue and the joint entity restrained the teams’ ability to individually market their intellectual property rights).
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Chapter 3. Interference with Contractual Relations 45 results (showing 5 best matches)
- As with employment relations themselves, employment contracts may consist of both management and labor contracts. Similarly, commercial contracts include contracts between parties at the same and at different levels in the chain of distribution of goods and services. Contracts among businesses of the same general type are likely to involve joint ventures, trade association activities or the sale of business assets, including intangible assets such as business goodwill or intellectual property. Contracts between businesses of different types or at different levels of the distributive chain are likely to involve financial transactions, the sale or lease of business premises or goods, the sale or licensing of some form of intellectual property, the performance of services, or some combination of all of these—as is the case, for example, in franchise operations.
- The common law’s disapproval of efforts to take advantage of an inequality of bargaining power or a relationship of trust or confidence likewise goes a long way toward explaining its protection of contractual relations that are terminable at the will of the parties. See, e.g.,
- Determinations as to the reasonableness of the temporal and territorial coverage of covenants not to compete will necessarily vary with the subject matter of the contract. A citywide territorial restriction on the right to compete may be reasonable for the protection of the owner of a large retail business but too broad for the protection of the owner of a neighborhood barbershop. A two year temporal restriction on competition may be reasonably necessary to protect the owner of a purely commercial enterprise having many competitors and producing goods or services which are in plentiful supply but unreasonable as applied to the purchase of a medical practice at a time when doctors are in short supply.
- Different considerations apply where the interference complained of creates an unreasonable risk of harm to the person or property of one of the contracting parties and does in fact result in such injuries. Both of the parties to the contractual relation may be blameless and their contractual relation perfectly foreseeable to the interfering party. If both conditions are met, the interfering party would in any event be liable for any physical injuries caused. It is thus not surprising that courts have allowed recovery of pecuniary loss resulting from negligent interference with contractual relations where it accompanies a negligent infliction of injury to the plaintiff’s person or property. One court has even awarded consequential damages for economic loss where the underlying basis for liability for the physical injury was strict liability rather than negligence. See
- Contracts of all types may range from elaborate written contracts to contracts whose terms are entirely implied from a course of dealing between the parties. Contracts may remain in force for a definite or indefinite term or may be terminable at the will of one or both parties. They may also contain post-contractual covenants, such as warranties of title or merchantability and covenants not to compete or disclose confidential information. Contracts which by their terms cannot be performed within one year, or involve the sale or mortgaging of real property or the authorization or employment of a real estate agent or broker or the sale of goods priced at $500 or more or claims in an amount or value of more than $5,000 must satisfy the Statute of Frauds and may be voidable if not expressed in writing.
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Chapter 5. Product Substitution or Alteration 28 results (showing 5 best matches)
- So long as the designation by which goods are ordered functions unambiguously as a trademark, the owner of the trademark has little difficulty in obtaining relief, not only against a retailer who substitutes less well-known goods for better known goods, but also against a manufacturer or distributor who can be shown either to have induced, explicitly or by suggestion or insinuation, the substitution of products or to have provided the substitute product knowing that the retailer would or could be expected to engage in unannounced substitutions. The latter amounts to contributory palming off, and thus, like contributory trademark infringement, constitutes a species of unfair competition. See Co., 265 U.S. 526 (1924). Difficulties arise, however, where a trademark has more than one meaning. Such ambiguity can occur in two distinct types of cases. In the first, normally involving a rather unique new product, the plaintiff coins a word to serve as a trademark for its product and the...in
- If the common law of unannounced product substitution owes much to the Coca–Cola Company, so the law governing reconditioned goods owes a similar debt to the Champion Spark Plug Company. See, e.g. , 331 U.S. 125 (1947), where the Supreme Court upheld a claim of trademark infringement and unfair competition against a defendant who reconditioned used spark plugs and sold them under their original “Champion” mark with inadequate notice that they were reconditioned. The case was only a partial victory for Champion, however, because the Court affirmed a modified decree which merely required the defendant to stamp “Repaired” or “Used” on the plugs in such a way as to be clearly and distinctly visible but did not require removal of the word “Champion” from the plug. The Court concluded that, although used, the plugs were nevertheless Champion plugs and not those of some other make and that the defendant was therefore entitled to identify them as such. See also ...Cir.2003), upholding a...
- In addition to holding that there was a substantial likelihood that ABC’s editing of the TV recording constituted an infringement of Monty Python’s copyright in the underlying script, the court concluded that Monty Python had also stated a cause of action under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which creates a federal cause of action against anyone who uses a false designation of origin or a false description or representation in connection with any goods or services put into commerce. (See Chapter 8 infra). The court noted that while American copyright law had not as yet recognized any equivalent of the European civil law concept of (i.e., the right of an artist to have his work attributed to him in the form in which he created it), courts had long granted common-law relief based either on a theory of breach of implied contractual obligation or unfair competition, for misrepresentation of an artist’s work. The court expressed doubt that a legend disclaiming Monty...
- Not every product substitution or alteration is actionable. Nothing precludes the seller who wishes to substitute or alter a product from attempting to persuade the customer to accept the goods proffered—at least so long as no false or deceptive representations are made. The only prohibition is against making substitutions or alterations. Unannounced substitution or alteration of goods has long been condemned as a form of unfair competition, even though no deceptive mark or trade dress is used and the goods are in fact clearly marked so as to indicate their actual origin. In practice, however, product substitution or alteration most frequently occurs where goods are unmarked or sold outside their original containers.
- It is also possible to deceptively substitute services, but that generally involves the use of a deceptively similar mark. See, e.g.,
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Index 171 results (showing 5 best matches)
- Unfair methods of competition in the import trade, 450, 472–473
- Unfair practices and methods of competition,
- See also Bribery; Coercion; Concerted Group Conduct; Contracts and Contractual Relations, Interference; Defamation; False and Deceptive Advertising; Malice; Misappropriation; Pricing Practices; Product Substitution and Alteration; Publicity, Common-law Right of; Refusal to Deal; Trade Disparagement; Trade Names; Trademarks; Unfair Competition
- Treaty on the Protection of Intellectual Property in Respect of Integrated Circuits, 303–304
- Unfair methods of competition, 449–450, 470–472, 480–481, 523–524
- Open Chapter
Dedication 2 results
Advisory Board 4 results
- Publication Date: November 13th, 2012
- ISBN: 9780314280640
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: This guide offers a broad summary of the law of intellectual property (patents, copyrights trademarks, trade secrets, and a variety of other sui generis forms of protection for innovations and creativity) and the law of unfair competition (trademark infringement, passing off, trade disparagement, and deceptive advertising).It also touches on related fields of law, such as antitrust, consumer protection, regulated industries, and the law governing interference with contractual and noncontractual relations.
