Closing the Gap: How EU Law Constrains National Rules Against Imitation?
in Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin, Ansgar Ohly (eds.) Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur (Cambridge University Press, 2020)
9 Pages Posted: 1 Apr 2021
Date Written: March 31, 2019
If imitation was simply bad, society could just proclaim it unfair. But it is not. Imitation is the lifeblood of economy and culture. It fuels progress because it facilitates the diffusion of new ideas. As much as innovators push the boundary of our knowledge, imitators help to disseminate it. Intellectual property rights are designed by legislators in a highly political process. Although contours of these choices are still left to the courts to determine, in particular as new technological uses develop, the most fundamental trade-offs are undoubtedly made directly by the legislator. Next to these exclusive rights, many countries regulate imitation also by means of judge-made doctrines against misappropriation. The goal of this short essay is to highlight the European dimension of these doctrines.
The cornerstone of the European project has always been its mechanism of free movement, embodying the idea that unnecessary barriers to cross-border trade should be avoided in order to build a brighter future. In the early days, intellectual property rights often played a role in the justification of local idiosyncrasies erecting barriers to intra-EU trade. This is also why so much effort was spent on approximating many of the aspects of intellectual property rights in the past two decades. At the same time, local doctrines of misappropriation grounded in unfair competition and tort laws were left largely non-harmonized. However, some of them were incorporated (in form or substance) into newly formalized Union legislation on IP rights. Therefore today, the Union’s constraints on the national rules against imitation are two-fold: (1) constraints imposed by formalized IP protection which incorporated national misappropriation doctrines and therefore pre-empts them, and (2) constraints imposed beyond these situations by the back-stop mechanism of the free movement.
The article explains the unappreciated consequences of both. It points towards a much more constrained regulatory environment for national policymakers than customarily assumed.
Keywords: misappropriation, unfair competition, intellectual property, imitation, free movement, pre-emption, EU law
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