Comment by Victoria L. Knight
A public policy underlying the American economy is the democratic tenet of free competition. Thus, although every competitor who wins customers from another damages the business of the losing competitor, that damage is merely damnum absque injuria. From this policy of free economic competition is derived the corollary principle of free access to business ideas and intellectual creations. Free copying and imitation comprise the general rule, while monopolistic, exclusive rights conferred by the laws of patent, trademark, and copyright are the exception. As articulated by the Supreme Court in 1938 in Kellogg Co. v. National Biscuit Co., "sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all—and in the free exercise of which the consuming public is deeply interested." The courts, however, have not absolutely subscribed to a policy of governmental laissez faire, recognizing that some measure of trade regulation is a necessary concomitant of the free enterprise economy. Judicial development of the law of unfair competition is a prime example of the courts' intervention in the marketplace to prevent public deception, unwarranted diversion of trade, and misappropriation of the goodwill and reputation of a business.
A significantly different balance has been struck between the competing goals of free competition and protection of intellectual property in most western European countries, particularly France. In contrast to the United States in general, the body of unfair competition law in France is far more comprehensively developed. In this article, the roles of unfair competition law in France and the United States generally will be analyzed, compared, and contrasted. In addition, the impact, both potential and present, of these two disparate approaches on the law of unfair competition in Louisiana will be discussed.
About the Author
Victoria L. Knight.
Citation
53 Tul. L. Rev. 164 (1978)