Unfair Competition Defined

Unfair competition is the ”common law” branch of trademark and other intellectual property infringement, wherein dilution and trademark infringement are the more specialized and statutory forms of unfair competition related to trademarks.  Unfair competition acts as an umbrella for all statutory and non-statutory causes of action arising out of business conduct that is contrary to honest business practices.  Unfair competition results in being more of a catch all for unregisterable market distinctiveness that holds a competitive advantage.  Given that fair competition is legal and necessary for a strong economy, unfair competition attempts to facilitate an avenue for a cause of action when an individual or entity uses another’s assets or competitive advantage or passes it off as his or her own.  This does not necessarily have to involve a trademark, but could be almost anything of value to a competitor; this goes along with the saying that one should not reap what they have not sown. 

 

Passing Off

This involves an offender passing off its own goods, as the goods of another, or alternatively what is termed “reverse passing off” is taking the goods of another and changing the name marking to the offender’s name marking or not having any name marking present i.e. unbranded products.    
Passing off and reverse passing off also requires that that the offender has intent to deceive or confuse the public. 

  

Misappropriation

Includes the pirating of information from another, even if the source pirated from is correctly identified, if the offending individual or entity uses the pirated information for their own benefit, is misappropriation and thus no passing off has occurred. Note, that no element of deceit or confusion is required, only the use of the skill, labor, or expenditures of a competitor.  

 

Limitations of the Application of Unfair Competition law

As can be seen from the above unfair competition has a very broad application and is limited by the preemption of federal law that would have a potential conflict, such as the areas of patent, trademark, and copyright law.  Thus, unfair competition is usually applied on various forms of intellectual property that are not registerable under existing federal patent, trademark, or copyright laws.  This would include items such as trade secrets, unregistered trademarks such as celebrity names, a famous signers voice, a famous face, etc.