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Ruse-Khan, Henning Grosse --- "Access to Knowledge under the International Copyright Regime, the WIPO Development Agenda and the European Communities’ New External Trade and IP Policy" [2009] ELECD 182; in Derclaye, Estelle (ed), "Research Handbook on the Future of EU Copyright" (Edward Elgar Publishing, 2009)

Book Title: Research Handbook on the Future of EU Copyright

Editor(s): Derclaye, Estelle

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847203922

Section: Chapter 23

Section Title: Access to Knowledge under the International Copyright Regime, the WIPO Development Agenda and the European Communities’ New External Trade and IP Policy

Author(s): Ruse-Khan, Henning Grosse

Number of pages: 39

Extract:

22 Do whiffs of misappropriation and
standards for slavish imitation weaken the
foundations of IP law?
Anselm Kamperman Sanders



Introduction
This contribution deals with the fact that notions of unfair competition law,
such as misappropriation or slavish imitation, are used to stretch the system of
intellectual and industrial property itself, to cumulate with intellectual or
industrial property rights to provide a supplementary, alternative method of
protection, or to provide subsequent protection if industrial or intellectual
property rights have lapsed. Although highlighting some recent Dutch cases,
the contribution nevertheless advances some universal notions on the sense of
European harmonisation, the doctrine of pre-emption and post-sale confusion.
The present author is of the opinion that the current state of disharmony in the
field of unfair competition is both a blessing and a curse for the development
of intellectual property law. The lack of harmonisation in the field of unfair
competition on the one hand appears to `breed' disharmony through the
expansion of copyright, yet principles of the internal market also curtail the
expansion of unfair competition law beyond their natural ambit. It is, however,
submitted that there is a need for a fundamental discussion of the role of unfair
competition law as a supplementary, alternative, or subsequent method of
protection to intellectual and industrial property rights which should however
be undertaken in the context of the whole system of protection of intellectual
and industrial creativity in its international context.

Smells like misappropriation
In the Trésor decision of June 20061 ...