UNFAIR COMPETITION

 

Restatement of the Law Third, Unfair Competition

xviii, 683 pp., 1995, hardbound, Order Code 5473, $85 -- Order this item; softbound, Order Code 6028, $31.25 -- Order this item

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This project, which addresses the right to compete, deceptive marketing, the law of trademarks, and related concepts of intangible property and correlative rights, marked the first time the Institute had addressed the subject of unfair competition since publication of the original Restatement of Torts more than half a century earlier. Together these subjects were to have been included in the Second Restatement of Torts, as they were in the first Restatement. See Restatement Second, Torts, Vol. 4, Introduction, vii-viii. It was eventually decided, however, that they should be addressed in a separate project.

Although the common-law action for unfair competition evolved originally to afford relief against a competitor’s misrepresentation of the source of goods or services, the term "unfair competition" now describes an array of legal actions addressing methods of competition that improperly interfere with the legitimate commercial interests of other sellers in the marketplace. The Restatement clarifies both the common-law principles and the related statutory rules that collectively comprise the modern law of unfair competition.

In the intervening years since publication of the original Restatement of Torts the field was transformed by legislation such as the Unfair Trade Practice and Consumer Protection Act, the Lanham Act, and the state anti-dilution acts, as well as by analogous common-law developments. Rather than continuing to regard it as part of the law of torts, the Institute therefore determined to develop an independent Restatement shaped by the complex interplay of common law and statutory rules that characterizes the contemporary law of this subject. The Restatement presents each topic within a comprehensive and coherent framework that conveys a more sophisticated understanding of the relationship between the values inherent in business competition and other social and political values, including the protection of free speech in a commercial context.

Both federal and state statutes play a significant, sometimes dominant, role in many of the substantive areas encompassed within the Restatement. For the most part the relevant federal legislation, such as the Lanham Act, does not preempt state law, and both federal and state unfair competition statutes generally rely without significant elaboration on concepts derived from the common law. The interstate character of modern business accentuates an interest in uniformity—an interest advanced by a consistent interpretation of both the common-law rules and derivative statutory provisions that define the boundaries of fair competition. Except as otherwise noted, the principles discussed in this Restatement are therefore applicable both to actions at common law and to the interpretation of analogous federal and state statutory codifications.

The volume contains four Chapters:

Chapter 1 sets forth the general principles governing the freedom to compete in a free enterprise system.

Chapter 2 addresses the rules governing liability for injury to the commercial interests of competitors and others arising from the use of deceptive representations in the marketing of goods and services. It encompasses representations falsely describing the qualities and characteristics of a seller’s goods or services, often referred to as "false advertising," and misrepresentations relating to the source of a seller’s goods or services, sometimes referred to as "passing off." Included also are examinations of the contributory liability of printers, publishers, and other suppliers, as well as of manufacturers and distributors.

Chapter 3 deals comprehensively with the rules governing the protection of trademarks and other indicia of origin or association, including the requirement of distinctiveness, the "likelihood of confusion" standard, and the remedies available for trademark infringement and dilution. Among the topics covered are the acquisition, licensing, and assignment of trademark rights, the recognition of such rights in packaging and product designs, and defenses and limitations on relief in infringement actions.

Chapter 4 examines the appropriation of intangible trade values, with particular emphasis on trade secrets and the right of publicity.

The usefulness of the Restatement is enhanced by tables of cases, statutes, and cross-references to the West Digest System and ALR annotations, a parallel table indicating where the matters covered in the original Restatement of Torts are to be found in the Restatement of Unfair Competition, and an index. The volume is updated annually by a cumulative pocket part.

Reporters: Robert C. Denicola, University of Nebraska College of Law, Lincoln, Nebraska; Harvey S. Perlman, University of Nebraska College of Law, Lincoln, Nebraska [from 1989].

Advisers: Miles J. Alexander, Atlanta, Georgia; William M. Borchard, New York, New York; Ralph S. Brown, Yale Law School, New Haven, Connecticut; Marie V. Driscoll, New York, New York [from 1988]; Kenneth B. Germain, Cincinnati, Ohio; Jerome Gilson, Chicago, Illinois; Milton Handler, New York, New York [from 1988]; Anne S. Jordan, Menlo Park, California [from 1988]; Benjamin Kaplan, Harvard University Law School, Cambridge, Massachusetts; Bruce P. Keller, New York, New York [from 1989]; Edmund W. Kitch, University of Virginia School of Law, Charlottesville, Virginia; William M. Landes, University of Chicago Law School, Chicago, Illinois [from 1988]; David L. Lange, Duke University School of Law, Durham, North Carolina; J. Thomas McCarthy, University of San Francisco Law School, San Francisco, California; Jon O. Newman, Judge, United States Court of Appeals for the Second Circuit, Hartford, Connecticut; Helen Wilson Nies, Chief Judge, United States Court of Appeals for the Federal Circuit, Washington, District of Columbia; James L. Oakes, Chief Judge, United States Court of Appeals for the Second Circuit, Brattleboro, Vermont; Harvey S. Perlman [to 1989]; Louis H. Pollak, Judge, United States District Court for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania [from 1989]; Arthur H. Seidel, Philadelphia, Pennsylvania; Michael Traynor, San Francisco, California; Donald F. Turner, Georgetown University Law Center, Washington, District of Columbia [from 1988 to 1992]; Sylvia H. Walbolt, St. Petersburg, Florida [from 1988]; Charles Alan Wright, University of Texas School of Law, Austin, Texas.

Tentative and Other Annual Meeting Drafts

Tentative Draft No. 1: Chapter 1. The Right to Compete; Chapter 2. Deceptive Marketing xviii, 95 pp., 1988, Order Code 5930, $15 -- Order this item

Tentative Draft No. 2: Chapter 3.The Law of Trademarks; Chapter 2. Deceptive Marketing (Revision of § 7) xxiii,275 pp., 1990, Order Code 5982, $30 -- Order this item

Tentative Draft No. 3: Chapter 3.The Law of Trademarks: Topic 4. Defenses; Topic 5. Licensing and Assignment of Rights; Topic 6. Remedies; Note on § 21 xxiii, 145 pp., 1991, Order Code 5325, $25 -- Order this item.

Tentative Draft No. 4: Chapter 4. Appropriation of Trade Values xxvi, 211 pp., 1993, Order Code 5428, $35 -- Order this item

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