Recommended Reading: Prof. Christine Farley, “The Lost Unfair Competition Law”

Professor Christine Farley of American University Washington College of Law, in her article, “The Lost Unfair Competition Law,” notes the oft-repeated assertion that trademark law “is but a part of the broader law of unfair competition.” But what is the broader protection that unfair competition provides? Her article “explains why we have lost sight of this answer and become confused about the scope of unfair competition law today by providing a historical examination of the drafting and enactment of the act and mysterious treaty [The Inter-American Convention], and their forgotten connection.”

Professor Farley observes that unfair competition law reached its high point in 1918 in International News Service v. Associated Press. Edward S. Rogers, a major architect of the Lanham Act, was one of the few who drafted the Inter-American Convention, which contains substantial unfair competition protection. However, the legislative history of the Lanham Act “reveals a disinclination to create a federal unfair competition cause of action.” Section 43(a) is often enlisted to fill the gap (although it has led to erratic results like Belmora v. Bayer, in which Section 43(a) was read to provide a cause of action to a plaintiff whose pleaded trademark had never been used in the United States). Professor Farley has some suggestions as to how reclaim the lost law of unfair competition can be reclaimed.

Part I identifies the confusion about the scope of unfair competition law that exists today. Part II traces unfair competition law from the beginnings of U.S. trademark law in the late 1800s to the 1946 Lanham Act. *** Part III tracks Edward Rogers’s contributions to the international and domestic development of unfair competition law. Part IV describes the pioneering protection of unfair competition provided by the Inter-American Convention. Part V discusses how the emergence of the Erie Doctrine in the late 1930s threatened to create a void because state laws on trademark and unfair competition were underdeveloped compared with federal law. Part VI interrogates the history of Section 44 of the Lanham Act, demonstrating that it was meant to incorporate by reference the unfair competition provisions from Inter-American Convention. This section describes how the robust unfair competition protection enabled through Section 44 continues to lie dormant, and Part VII recounts how Section 43(a) instead emerged as the vehicle for unfair competition. *** Finally, Part VIII will offer some suggestion about how, in light of this history, the unfair competition law that was lost might be reclaimed.

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