In Goethe's drama «Faust» Gretchen asks Dr. Faustus: «Now tell me: how do you take religión»?1 Gretchen's question is naive, but also fundamental, directly to the point, and it is answered in an evasive way. If we try to rephrase Gretchen's question in relation to intellectual property law, it might be: «Now tell me: how about imitation?» What sounds like a question asked by a student in an introductory course is in fact a fundamental issue about which there is a surprising degree of disagreement.
If imitation is unfair, it follows that intellectual property protection against misappropriation is appropriate, even where there is no evidence that such protection is beneficial for society. The protection of well-known marks against dilution and misappropriation of goodwill, for example, can easily be justified. Overlaps between intellectual pro perty rights are generally acceptable, and unfair competition law can be relied on in order to ful gaps between intellectual property rights. If, however, imitation is a necessary and welcome process in a market economy, the argumentative threshold for justifying intellectual property rights is significantly higher. Broad antidilution laws, for example, are more difficult to justify because consumer interests are only marginally affected and because there is no evident need to créate incentives for the creation of luxury images. Overlaps between intellectual property rights can be worrying where the accumulation of rights can undermine exceptions2. Seen from this perspective, the área between intellectual property rights should not be referred to as a «gap» but rather as a free space which should not be restricted by unfair competition law.
Two diametrically opposite positions can be distinguished. According to one view, «reaping without sowing» is unfair. The classical exposition of this attitude can be found in the opinión of the US Supreme Court in INS v. AP:
In doing this (i. e. rewriting news gathered by the plaintiff and publishing the news as its own) defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitímate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business
At least in Continental Europe, many courts and academic lawyers have adopted the same attitude. One year before the Supreme Court decisión in INS v. AP was handed down, the Germán judge and academic Adolf Lobe characterised «ploughing with someone else's calí» as unfair4. In present-day Europe, it is in particular the French courts which grant broad protection against «parasitic competition»5. This approach is based on the conviction that «it is unfair to attain a competitive advantage resulting from the [...] investment of another»6. Many other jurisdictions provide for protection against «slavish imitation» or misappropriation, often on the basis of unfair competition law7.
In common law jurisdictions, however, the majority opinión in INS v. AP has not been widely foliowed. It has been referred to as an island rather than a landmark8. Today, most common lawyers are more likely to subscribe to the vigorous dissent given by Justice Brandéis, who warned against interfering with free competition:
That competition is not unfair in a legal sense, merely because the profits gained are unearned, even if made at the expense of a rival, is shown by many cases besides those referred to above. He who follows the pioneer into a new market, or who engages in the manufacture of an article newly introduced by another, seeks profits due largely to the labor and expense of the first adventurer; but the law sanctions, indeed encourages, the pursuit
According to this position, imitation as such is not only unobjectionable, it is «the very lifeblood of a competitive economy»10. Competition by imitation drives down prices. Since consumers «want the best deals they can get» 11, vigorous competition is in their best interest, at least as long as there is no deception. In Europe, English judges are probably the strongest proponents of the freedom of imitation.
The position of many Continental European jurisdictions is some-where between these extremes. Art. 11 (1) of the Spanish Code against Unfair Competition explicitly stresses the freedom of imitation, but imitation is considered unfair in certain situations, in particular where the imitation results in an association with another trader's products or where another trader's reputation is misappropriated [art. 11 (2)]. Along the same lines, Germán law recognises the freedom of imitation (Nachahmungsfreiheit) outside the scope of intellectual property law as a principie12, but the sale of imitated products is considered as unfair, when (a) consumers are deceived, (b) the reputation attached to the original products is damaged or unduly exploited or (c) the imitation was made possible by a breach of confidence13. Under the Italian Civil Code the slavish imitation of products is unfair when it creates confusión14, whereas the mere misappropriation of reputation can be enjoined under the general clause of unfair competition law 15, as long as such protection does not conflict with the limits of intellectual property protection 16. The Dutch Supreme Court (Hoge Raad) stresses the freedom of trade as a principie 17, but is prepared to protect results of skill and labour against slavish imitation in exceptional cases18. In sev-Page 357eral countries a certain discrepancy between theory and practice can be observed: while in theory imitation is free, judges often seem to have the hunch that it is wrong to imítate someone else's producís without reasonable efforts of one's own19.
One of the fundamental tasks of intellectual property research is the search for the right balance between effective intellectual property protection and free competition.
Over the last decades, intellectual property protection has been extended and strengthened both at the international level and in national jurisdictions. The TRIPS Agreement not only sets out minimum standards of intellectual property protection, it also puts an obligation on member states to provide for enforcement procedures which permit effective protection against infringement [art. 41 (1)]. In the European Unión and elsewhere, intellectual property protection has been extended to new types of subject-matter. At the same time, the Enforcement Directive has harmonised the remedies available in cases of infringement at a high level. It is not the intention of this article to criticise these developments. Indeed, where intellectual property protection is justified, it must keep pace with new developments and it must be efficient.
It seems, however, that the political drive towards more and stronger intellectual property protection has relegated the countervailing principie of free competition into the second row. The need for a balance of rights and obligations (art. 7 TRIPS), the necessity to prevent practices which unreasonably restrain trade [art. 8 (2) TRIPS] and the principie of proportionality [art. 3 (2) EC Enforcement Directive] feature less prominently in the international political arena than the need for strict intellectual property protection. In particular, the principie of freedom of imitation is often considered as outdated or unjustified. Sometimes such criticism is made explicit20. As already noted abo ve, however, courts and authors often pay rhetorical tribute to this concept while nevertheless restricting imitation on the basis of well-established intellectual property or tort law doctrines.
Against this tendency, the crucial importance of the freedom to imítate should be stressed. There are two reasons why imitation must bePage 358free. First, there is a strong policy argument: imitation is the lifeblood of a competitive economy. This is evident when the imitation is one step in the process of creating a new product. But even the non-innovative or noncreative imitation has a central function in a market: it enhances competition and reduces prices. To be sure, the economic analysis of intellectual property shows that there may be good reasons for restricting competition by imitation in order to advance competition by innovation21. But this justification is also a limitation: propertisation is no end in itself; it is only justified as far as it is necessary to ensure the proper functioning of markets22. The second argument is of a systematic nature. Exceptions...