This document discusses unfair competition and related intellectual property issues. It covers trade secrets, misappropriation, the right of publicity, and false advertising. Specifically, it defines unfair competition and outlines forms such as passing off, misappropriation, infringement of publicity rights, and false advertising. It provides examples and details about these concepts, defenses, and relevant laws such as the Lanham Act.

1. Intellectual Property Rights
Presented by
Dr. B.Rajalingam
Assistant Professor
Department of Computer Science & Engineering
Priyadarshini College of Engineering & Technology, Nellore
Unit 4
Unfair Competition

2. Syllabus
• Trade Secrets:
Trade Secrete Law
Determination of Trade Secrete Status
Liability for Misappropriations of Trade Secrets
Protection for Submission
Trade Secrete Litigation
• Unfair Competition:
Misappropriation
Right of Publicity
False Advertising29 October 2020 2Trade Secret Law: Dr. B.Rajalingam

3. Unfair Competition
 The law of Unfair Competition is to safeguard the interest of the customers from
unfair / misleading trade practices.
 Unfair Competition is a broad term covering a wide variety of deceptive practices
in the marketplace.
 The law of unfair competition continues to evolve with changes in the marketplace
so that deceptive infomercials and false advertising on the Internet can be
prohibited.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 3

4. Cont…
The most commonly alleged forms of unfair competition are:
 Passing off (selling one’s goods as those of another)
 Misappropriation (the taking of another’s intangible commercial property right)
 Infringement of the right of publicity (appropriating another’s identity or persona
for commercial purposes)
 False advertising (making false or deceptive representations about the nature of
one’s own goods or services)
 Product disparagement (making false or deceptive representations about another’s
goods or services)
 Dilution (use of a mark that is likely to cause blurring or tarnishment of another’s
famous trademark or service mark)
 Infringement of trade dress (causing likelihood of confusion with the distinctive
product image or overall design or appearance of another’s product or service)29 October 2020 Trade Secret Law: Dr. B.Rajalingam 4

5. Passing off
 Passing off occurs when one party sells his good & services by
affixing another company trademark on them.
 Passing off confined to registered and unregistered trademarks,
symbols, sign & devices, etc.
 Passing off in an offence which is done by misrepresenting the goods
& services were creating confusion in customers mind which affects
the image of goods/products will of the original manufacture.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 5

6. Misappropriations
• Misappropriations means where someone acquires, uses and/or
discloses company trade secret without taking any permission
from company in an improper manner.
• Violations of non disclosure agreement takes place when a party
in the contract from the breach to the agreement.
• Misappropriation in violation of a state trade secret law.
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7. Right of Publicity
 A person’s name, identity, voice, likeness, and persona are protected against
unauthorized commercial exploitation through the right of publicity.
 The right of publicity gives individuals, not to use celebrities name and
images for the commercial use.
 The right of publicity protects a commercial interest, the vast majority of
cases involve celebrities inasmuch as they can readily show economic harm
when their names, photographs, or identities are used to sell products.
 Publicity rights are governed by state law.
 In sum, however, there is no nationwide or federal right of publicity and
there is a patchwork of laws across the nation relating to this right.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 7

8. Appropriation of Identity
Phrases and nicknames.
• Johnny Portable Toilets, 698 F.2d 831 (6th Cir. 1983), a court prohibited a portable
toilet company from using the phrase “Here’s Johnny” in connection with
advertising its services, holding that the phrase had become sufficiently identified
with the entertainer Johnny Carson to be protected, even though neither his full
name nor his picture was used.
• Even nicknames are protectable if they are understood to identify the plaintiff.
Likeness.
• A person’s “likeness,” including a variety of physical features, is protectable against
unauthorized use, whether by drawing, cartoons, or look-alikes.
• Prohibit the use of a look-alike’s photograph in advertisements for video rental
stores inasmuch as the advertisements falsely suggested that Woody Allen endorsed
the advertised services.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 8

9. Cont…
Voice.
• Ford Motor Company’s use of an impersonator to imitate the singer Bette Midler’s
vocal style in advertisements for Ford’s cars was held to be a wrongful
misappropriation of her identity.
Roles and associated objects.
• Imitating a distinctive performing style or persona is actionable.
• Thus, the roles associated with Groucho Marx and Charlie Chaplin (the “Little
Tramp” persona) have been protected from unauthorized commercial exploitation.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 9

10. Duration and Descendibility of Right to
Publicity
 The duration of the right of publicity is subject to much variation.
 Some states do not provide any protection for deceased individuals.
 For example, in New York, the right can be asserted only by a living individual.
 Many experts believe that this view stems from the association of the right of
privacy with the right of publicity.
 Because the right of privacy is personal to the individual and does not survive death,
some states similarly hold that there is no postmortem right of publicity.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 10

11. Defenses in Right of Publicity Cases
 A variety of defenses may be asserted in actions alleging infringement of one’s right
of publicity.
 One defense raised is that the plaintiff is not specifically and readily identified by
the usage.
 In a 2001 case, the California Supreme Court held that T-shirts decorated with an
artist’s drawing of the Three Stooges violated the rights of publicity of the heirs of
the Stooges because the product containing their likeness did not so transform their
image that it became the artist’s own expression.
 The work did not contain significant creative elements but was rather a realistic
reproduction of their image.
 The court noted that by contrast, Andy Warhol’s famous silk screens of celebrities
are permissible because they go beyond mere commercial exploitation of celebrity
images and provide ironic social commentary.29 October 2020 Trade Secret Law: Dr. B.Rajalingam 11

12. False Advertising
• Advertising good or products with false information's to get economic
benefits.
• In our daily life of we observe, even though some products are not
good for health advertising it as a good for health.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 12

13. Cont…
• In 1946, the federal trademark law, the Lanham Act, was passed.
• Section 43(a) of the act prohibited false designations of origin, namely descriptions
or representations tending falsely to describe or represent goods or services.
• Until the passage of the Lanham Act, actions involving unfair competition tended to
allege passing off or trade disparagement.
• Passing off, however, was limited to instances in which a party misrepresented the
source of goods or services.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 13

14. Cont…
• An advertisement that is literally false is clearly actionable.
• Even advertisements that are implicitly false or unclear, however, are actionable if
they are nevertheless likely to mislead or deceive consumers.
• False advertising is actionable under section 43 of the Lanham Act, which prohibits
advertisements that falsely represent the nature, characteristics, or qualities of one’s
own or another’s goods or services.
• In many cases, surveys of consumers are used to prove that the message conveyed,
even if literally true, is deceptive to the public at large.
• If scientific, medical, or technical claims are made in an advertisement, experts are
usually called to demonstrate truth or falsity.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 14

15. Examples of False Advertising
Following are some examples of advertising held to be false:
 A failure to disclose that advertised prices did not include additional charges.
 A statement that a pregnancy test kit would disclose results in “as fast as 10
minutes” when a positive result would appear in 10 minutes but a negative result
might take 30 minutes.
 A claim that a certain motor oil provided longer life and better engine protection
than a competitor’s product when that claim could not be substantiated.
 A claim that orange juice was pure, pasteurized juice as it came from the orange and
showing a celebrity squeezing an orange and pouring the juice directly into the
carton when the juice was heated and sometimes frozen prior to packaging
 A false claim that automobile antifreeze met an automobile manufacturer’s standards
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 15

16. Cont…
 Falsely claiming a whiskey to be “Scotch” whiskey when it was not
 Covering up a label stating “Made in Taiwan” that appeared on goods
• Many cases involve comparative advertising claims in which one party claims its
products are superior or equivalent to those of a competitor.
• The competitor need not be specifically identified for an action to lie.
• In comparative advertising cases, a plaintiff must in fact show that the claimed
product is inferior or not equivalent.
• Claiming that a product is “compatible with” or “works with” another product is
permissible as long as the claim is true.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 16

17. Defenses to False Advertising
• Clearly, the truth is a defense to a claim that an advertisement is false or misleading.
• Note, however, that an advertisement that is literally true can still constitute false
advertising if it is likely to mislead consumers.
• Truth can be shown by survey evidence , statistical evidence, or expert opinion.
• Another common defense asserted in false advertising cases is puffing.
• Puffing is an exaggerated and highly subjective statement or vague boast upon
which no reasonable person would rely.
• Courts generally hold that such puffing is vague and is opinion only rather than a
misrepresentation of fact and is thus not actionable.
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 17

18. Regulation by the Federal Trade Commission
 The Federal Trade Commission (FTC) is charged with enforcing a comprehensive
law, section 5 of or deceptive acts.
 Similar to section 43 of the Lanham Act and most state statutes relating to false
advertising, section 5 requires that objective claims made in advertising and
marketing be truthful and substantiated.
 The FTC will not pursue subjective claims or puffing, such as a claim that a suntan
lotion is the “best in the world,” but will pursue claims that include an objective
component, such as “our suntan lotion lasts longer than other popular brands.”
 Many states have statutes similar to section 5 of the FTC Act that prohibit deceptive
and unfair trade practices.
 The state statutes are usually referred to as little FTC acts.
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19. Thank You
29 October 2020 Trade Secret Law: Dr. B.Rajalingam 19