The Stunted Development of Unfair Competition Law in the United States and Canada

Document Type

Article

Publication Date

2-2024

Journal

Journal of Intellectual Property Law & Practice

Volume

19

Issue

2

Abstract

Both the United States and Canada present unfair competition law in a way that is complex and indicative of their kindred beginnings. Sharing a closely paralleled history in the development of unfair competition law, these countries exhibit unique similarities in both substance and approach, likely not found in any other jurisdiction

Born out of English common law, the early trajectory of unfair competition was inextricably linked to trade mark law. Both countries’ legislatures passed ambitious trade mark statutes that created federal regulation of certain areas of unfair competition, while also reserving large areas for the state or provincial legislatures to regulate. Claimants therefore navigate substantial variety in unfair competition protections depending on the cause of action. Even so, obligations under international agreements such as the Paris Convention and interaction with other bodies of law further extend the unfair competition legal landscape.

Despite its complexity, the United States and Canada share remarkably similar paths to unfair competition protection. Understanding their history, limited national legislative powers, policy rationales, obligations under international agreements and the interplay between federal and state or provincial law create a rich and multifaceted unfair competition landscape.

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