Universiteit Leiden

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Business & Law Research Network

Intellectual property and unfair competition

Intellectual property (IP) is the most valuable asset of many businesses. Conflicts about intellectual property and trade secrets happen between businesses of all sizes and can also be considered as part of the broader field of unfair competition law. That field can also be subdivided in in unfair competition in business-to-business relations and unfair business-to-consumer commercial practices. Comparative and misleading advertising are also part of this field.

Unfair commercial practices, such as deceptive (price) advertising, can harm consumer and business interests. Appropriate protection from the consequences of these practices is a key priority at regulators in Europe.  

Conflicts about descriptive identifiers of businesses, such as trade names, trademarks and domain names are the most conflicts among small and medium enterprises and the outcome of legal procedures in such conflicts is often hard to predict. Insights in theory and practice in this field are very important for businesses of all sizes.  

Trade secret protection is also at the core of many businesses and is harmonized at the EU level since 2018, but is a field of the law that is still very much developing and difficult to qualify under civil law systems. This field deserves clause attention in academic legal research.

Research projects

Much of the literature on pricing contributes to the question how firms can maximize revenue growth and minimize opportunity cost. Rarely has the ethical nature of the practice been subjected to substantial comment and discussion. This research line investigates inherent ethical concerns and legal challenges that may come with future developments in pricing, in particular indirect forms of online personalized pricing, thereby seeking to initiate a broader discussion about issues such as dishonesty, unfairness, injustice, and misconduct in pricing and revenue management practices.

When firms mark up a sale price with an indication of a ‘regular’ price that is not bonafide, they hope to raise the consumer’s internal reference price (RP). Whether such reference price advertising is deceptive depends on the injury caused and the inferences drawn from the suggested (false) ‘regular’ price. The literature variously assumes that consumers infer the intrinsic value, the fair or normal price or the prevailing competitive price. Yet, these price inferences have never been validated, nor have their antecedents been examined, most particularly the conditions and characteristics that are predictive of these inferences, especially within particular market segments. In this context, the focus of this research line is the vulnerable consumer.

This study aims to gain a better understanding of trade secret protection and its relation to civil law and intellectual property law.

Trade secret protection is harmonized at the EU level since 2018. This study examines the core concepts of the EU Trade Secrets Directive (2016/943), such as the definitions of a trade secret, trade secret holder and infringer. As these concepts also appear in Dutch civil law, this study examines how the concepts relate to each other. Furthermore, the incorporation of the Trade Secrets Protection Act into civil law is investigated, such as the relation of trade secret protection to the doctrine of unlawful acts.

Another aspect of this study is the relationship of trade secrets to intellectual property rights. In practice, companies can choose trade secret protection over patents, potentially extending the term of protection and avoiding the risk of compulsory licenses. This study examines the extent to which trade secret protection can be an alternative or complement to patent law.

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