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558 European Intellectual Property Review
cause’ need to be assessed separately, and are not
implied in the taking of commercial advantage as
such.”
And finally, a wider question to consider is as follows.
Is it time to harmonise the laws of unfair
competition in the European Union?
The controversy of L’Oréal v Bellure has, as Jacob L.J.
noted, at its heart the relationship between trade mark
and competition law. It has for the first time brought rights
akin to those protected by the law of unfair competition,
until now confined to continental Europe, across the
Channel into the United Kingdom. It is likely, without
harmonisation of unfair competition laws, that the L’Oreal
v Bellure ruling will be interpreted and applied, in
particular in relation to what is an “unfair advantage”,
according to the laws of parasitical trading, slavish
copying and other unfair competition law concepts as
these are understood in the relevant European Member
States. Indeed it is interesting to note that many of the
terms discussed in the case law of the CFEU, such as
parasitism, tarnishment, blurring and “riding on the coat
tails”, which are not English law concepts, are not set out
in the literal wording of the legislation as currently
enacted. On the other hand concepts such as “unfair
advantage” and “without due cause” which do appear in
the legislation are typically not discussed in detail or at
all.
It is also likely, as has apparently already happened
that the United Kingdom, a jurisdiction which has until
now not had an unfair competition law, will interpret the
ruling in as restrictive a way as possible, for example by
requiring the element of intention to take an unfair
advantage. As well as reforming or clarifying trade mark
law in Europe, perhaps there is a need to consider
harmonising national laws of unfair competition. In this
way it should also be possible to circumscribe what is
“fair competition” and ensure that acts falling within this
category are not adjudged to take “unfair advantage” of
a mark with a reputation in the context of trade mark law.
The Max Planck Study may have paved the way for
such an approach by recommending that unregistered
well-known trade marks having a reputation should be
accorded the same protection as that accorded to
registered trade marks. However any legislative changes
which are proposed by the Commission later in 2011 on
the basis of the Max Planck Study recommendations are
realistically not likely to include anything so far-reaching
in scope. It is to be hoped that nevertheless the proposals
for new legislation will grasp this important opportunity
to provide us with a clearer, more internally consistent
and comprehensive European trade mark law.
[2011] E.I.P.R., Issue 9 © 2011 Thomson Reuters (Professional) UK Limited and Contributors