The main advantages of the unfair competition law
are flexibility and non-exhaustive list of practices
that may actually be qualified as unfair
competition. Trademark law is more conservative in this respect.
The dispute addressed below may be a good illustration of defence
by producers of competing products against IP infringement claims
by employing the mechanisms of protection against unfair
competition. While the decision in the dispute is not yet final, a
round won by the competitors is a valuable contribution to the
development of alternative instruments and mechanisms of
rights protection.
TM owner wins the first round. Competitors win the second
one
The first round was in favour of the trademark owner. The court
has found that (i) the trademarked shape of a washup (3D mark, as
illustrated above) ("Trademark") is not
a form required to achieve a certain technical result; and (ii)
though the form points to natural (real) state of a product, it
