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Dilution as Unfair Competition: European Echoes

Intellectual Property at the Edge: The Contested Contours of IP, Rochelle Cooper Dreyfuss and Jane C. Ginsburg, eds., Cambridge University Press, 2014

Oxford Legal Studies Research Paper No. 37/2013

21 Pages Posted: 13 Apr 2013 Last revised: 23 Jan 2014

Graeme B. Dinwoodie

University of Oxford - Faculty of Law

Date Written: January 7, 2014

Abstract

This response to Barton Beebe explores whether contemporary experience in Europe supports the central arguments advanced by Beebe in The Supressed Misappropriation Origins of Trademark Antidilution Law. The development of E.U. law is largely consistent with the idea that dilution law is in part an effort to install a misappropriation regime, at least insofar as the objects of protection are trademarks with a reputation (increasingly, a smaller caveat as the scope of potential trademark subject matter expands and the reputation threshold falls). This has important local consequences: if dilution law is in truth is a law against misappropriation, the Court of Justice of the European Union has greater scope to contribute to the creation of a nascent European law of unfair competition. But examining recent European case law also suggests that understanding misappropriation as part of a broader system of unfair competition may moderate the formalist critique of misappropriation as wholly indeterminate and unlimited. Understood in its unfair competition milieu, a misappropriation-based concept of dilution retains some potential for measured delineation of the edges of protection.

Keywords: trademark, dilution, Schechter, misappropriation, unfair competition, unfair advantage, formalism

JEL Classification: K19, K20, K29, K33, K39

Suggested Citation

Dinwoodie, Graeme B., Dilution as Unfair Competition: European Echoes (January 7, 2014). Intellectual Property at the Edge: The Contested Contours of IP, Rochelle Cooper Dreyfuss and Jane C. Ginsburg, eds., Cambridge University Press, 2014; Oxford Legal Studies Research Paper No. 37/2013. Available at SSRN: https://ssrn.com/abstract=2249044

Graeme Dinwoodie (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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