Unfair Competition

• Author: David R. Gerk - John M. Fleming
• Pages: 271-283

P A R T 4

Unfair Competition

271

Our life is not really a mutual helpfulness; but rather, it’s fair

competition cloaked under due laws of war; it’s a mutual hostility.

—Thomas Carlyle

I. BACKGROUND AND RATIONALE

Herbert Hoover once stated, “[c]ompetition is not only the basis of pro-

tection to the consumer, but is the incentive to progress.” Generally speak-

ing fair competition provides the greatest benefit to consumers. Benefits

to consumers from a system of fair competition are not just theoretical.

Fair competition has the tangible effects of, among other things, keeping

prices down, increasing output, and encouraging rapid innovation. Laws

and regulations for maintaining fair competition or preventing “unfair

competition” are related in purpose and function to trademark laws. Not

surprisingly, the constitutional basis for these laws and regulations, like

federal trademark law, is rooted in Article I, Section 8, Clause 3, the

Commerce Clause of the U.S. Constitution. The Commerce Clause gives

Congress the power “to regulate commerce with foreign nations, and

among the several states, and with the Indian tribes” and federal unfair

competition laws have been enacted by Congress to regulate commerce

to the desired benefit of consumers and the public. Like trademark law,

which also can be considered a form of unfair competition, unfair com-

Part 4