The Protection of Brands against Unfair Competition: A proposal for reform

Abstract

It is an established marketplace reality that the success of a brand attracts competitors who may wish to follow its path or attempt to utilise its success for their own commercial gain. One such case is the launch of a lower price L’Oréal smell-alike perfume by Bellure in 2006. A mimicking of one or several features of a brand is aimed at changing the relevant consumer’s purchase decision by giving ‘a wink of an eye to existing branded product’ which can be more effective than launching a distinctively new product. A competition as such, that serves to reduce prices and increase consumers’ choice with no likelihood of confusion, is considered to be in the wider interest of the public in the current English Law. Pursuant to this view, protection to brands against unfair competition by mere misappropriation is not acknowledged by the English law. This lack of acknowledgement leads to insufficient protection to brands in the marketplace against rivalry which in turn undermine the intellectual flourishing in society – a vital part of humans’ nature.

This thesis argues that the inclusion of brands in a broader scope of protection against unfair competition by misappropriation in the English law serves to enhance the intellectual flourishing of society. It therefore suggests that limitations to certain un-authorised uses of brands in the course of trade now needs to be acknowledged.

For that purpose, Part 1 of this thesis offers a critical analysis to the current English approach towards the protection of brands against unfair competition misappropriation (in particular, under the tort of passing off and section 10 of the TMA 1994) and demonstrates how it is designed by, and limited to, economic rationality while overlooking brands in their wider sense. Part 2 utilises the non-economic framework of intellectual flourishing, as an obligation on society, to provide a broad view on the complex nature of brands and the implications of their protection (or lack thereof) upon society. The analysis in this thesis results in the proposal of a statutory clause that replaces the present section 10(3) of the TMA 1994, as well as the implementation of statutory defences into section 11 of the TMA 1994. Rather than broadening private rights in the marketplace, the ultimate goal of the proposed protection alongside the counterbalancing defences is to contribute towards meeting the larger obligation on society to flourish intellectually. In particular, to encourage individuals to use their senses and engage their imagination to create further knowledge in society, to participate in meaning-making and communicate through an enhanced semiotic discourse and to exercise new modes of thinking by amending and altering existing meanings through an enhanced memetic discourse. Without having adequate protection of brands against unfair competition by misappropriation in the marketplace, the ability to utilise the above-mentioned outcomes of those intellectual values is undermined.