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Competition Within the Law or Trademark Infringement – Unfair?

One of the things that makes intellectual property (IP) law so interesting to many bright, young lawyers, is the often subtle interplay between perfectly reasonable competition, law, trademarks, unfair business practices and just about every conceivable human motivation between.  Specialist attorneys in patent, trademark and copyright law often spend nearly as much time trying to figure out whether an IP case can be successfully prosecuted as they do in actual proceedings.  What may seem very unfair to you, may in fact, be perfectly legal.

The line between illegality and unethical behaviour can be very blurry, especially in the case of IP competition law.  A trademark, unfairly diluted or manipulated, for example, may be successfully prosecuted in one locale, while an attorney in patent, trademark and copyright law may find it difficult to even arrange a hearing for the very same property in another country or area.  The difference is regional and cultural.  Also, competition law for trademarks unfairly used has a public relations aspect that is influential.

However, such as in the case of trademark dilution, competition laws for trademarks or unfair use clauses in the local law make exception for those who aren't actually making any money off your slogan or logo.  This way, public discourse is allowed to drag a corporation into the debate.  Most attorneys in patent, trademark and copyright law accept that some “brands” simply cannot be controlled.  This is certainly true of patents that eventually expire.

Under the rule of fair competition law in the US and EU, a trademark unfairly used carries only civil penalties in line with damages.  To prove that a trademark has been diluted without profit requires much more evidence to pay-off.  A contingency attorney in patent, trademark and copyright law (often a very good choice in patent protection) might shy away from cases that aren't very clear and in a market he or she is accustomed to dealing with. 

In IP proceedings and competition law, a trademark / IP unfairly used must be proven strong.  This can come about as the result of having been in constant use for many years, having registered the IP with the relevant domestic office or used the proper symbol with the IP for a long time.  The specificity of the IP will also assist an attorney in patent, trademark and copyright law suits.

It behoves professionals to spend time finding a suit able attorney in patent, trademark and copyright law before even launching a new IP or into a new market.  Morphing and changing with public attitude, the application of competition law to trademarks in unfair use, differs greatly by public attitude and jurisdiction.