Introduction

Within the common law systems, the phrase ‘unfair competition’ is often used in three distinct ways: in the broadest sense, as a generic term to cover a wide range of legal and equitable causes of action dealing with unfair trading; as a synonym for the tort of passing off; and, finally, as a label for a general cause of action based on the misappropriation of valuable intangibles. The latter form of unfair competition emerged in the United States in the early part of the twentieth century, although it has been sparingly applied and has subsequently been confined, largely by the constitutional doctrine that federal statutory intellectual property rights such as copyright and patents are supreme and, in any conflict, pre-empt the application of state laws. Such a cause of action has been rejected by the English and Australian courts which refuse to protect ‘all the intangible elements of value … which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour’. Intellectual property rights are dealt ‘as special heads of protected interests and not under a wide generalization’. The crucial factor will be whether an intangible falls within one of the discrete recognised categories, rather than the fact that the intangible creation has some form of value.