English Unfair Competition Law
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English Unfair Competition Law Richard Arnold
Published online: 31 January 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
Abstract For over a century, it was generally accepted that England had no law of unfair competition. In this article I shall suggest that it is time to recognise that there is such a thing as English unfair competition law, and I shall explore its place in international and European unfair competition law. Keywords Unfair competition law Consumer protection law Trade mark infringement Passing off Malicious falsehood Breach of confidence
1 The Traditional View: England Has No Law of Unfair Competition In the nineteenth century case of Mogul Steamship Co Ltd v. McGregor, Gow & Co the defendants were ship owners sailing between China and England who formed an association whose object was to monopolise the tea trade and keep up freight rates. The association regulated the numbers of ships to be sent to ports, the division of cargoes and the rates of freight. A rebate of 5% was offered to shippers who only shipped with members. Agents of members were prohibited from acting on behalf of competing ship owners. On occasion, the members charged loss-making rates. The claimant was a rival shipowner who claimed damages for conspiracy. The claimant was unsuccessful at first instance, in the court of appeal and before a seven-judge House of Lords.1 1
(1892) AC 25.
This article is based on lectures delivered at the German Judicial Academy, Wustrau on 22 September 2010 and the University of Bayreuth on 6 June 2012. R. Arnold (&) Judge of the High Court of England and Wales Chancery Division, Room 25, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL, UK
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In the court of appeal Fry LJ famously said:2 ‘‘To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts.’’ As Fry LJ went on to acknowledge, English law recognises the existence of what are now called the ‘‘economic torts’’ (procuring breach of contract, intimidation, unlawful interference with business, unlawful means conspiracy and conspiracy to injure)—but these are all torts involving intentional damage to economic interests. Acting in one’s own interest is not enough for this. ((Nowadays, of course, the claimants would have a remedy for infringement of competition (i.e. anti-trust) law)). One hundred years later, nothing had changed. Delivering the second Herschel Smith lecture in 1985, The Law of Unfair Competition in the European Community: Its Development and Present Status, the eminent German scholar Professor Friedrich-Karl Beier of the Max Planck Institute for foreign and international patent, copyright and competition law said:3 ‘‘the law of unfair competition (in the United Kingdom) must, to a great extent, be considered ‘terra incognita’’’. His assessment was confirmed three years later when Harman J said in Swedac Ltd v. Magnet & Southerns plc:4 … this alleged tort really amounts to sayi
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