IP Law: Trademarks

The Institute is pleased to publish herewith Restatement of the Law Third, Unfair Competition.
This Restatement treats the common law principles and analogous statutory rules that collectively comprise the law of unfair competition. Although the common law action for unfair competition evolved originally to afford relief against a competitor's misrepresentation of the source of goods or services, the term “unfair competition” now describes an array of legal actions addressing methods of competition that improperly interfere with the legitimate commercial interests of other sellers in the marketplace. Included within this Restatement are causes of action for passing off, deceptive advertising, and the infringement of trademarks, trade secrets, and publicity rights.
Federal and state statutes play a significant, sometimes dominant role in many of the substantive areas encompassed within this Restatement. For the most part the federal legislation does not preempt state law, and both federal and state unfair competition statutes generally rely without significant elaboration on concepts derived from the common law. The interstate character of modern business accentuates the interest in uniformity—an interest advanced by a consistent interpretation of both the common law rules and derivative statutory provisions that define the boundaries of fair competition. Except as otherwise noted, the principles discussed in this Restatement are applicable to actions at common law and to the interpretation of analogous federal and state statutory codifications.
This Restatement is the Institute's first independent work on the subject. The subject of unfair competition was to have been addressed in the Restatement, Second, of Torts, as it had been in the original Restatement of Torts. However, it was eventually decided that the law of unfair competition had evolved to the point that it was no longer appropriate to treat it as a subcategory of the law of Torts. See 4 Restatement, Second, Torts, Introduction and Introductory Note to Division Nine. Subsequently—over the last 30 years or so—there has been enormous development of the law, as well as of the technology and techniques of business competition. There has been a parallel increase in the commercial and financial significance of intellectual property generally, including that defined through the law of unfair competition. Over approximately the same period theoretical explorations, often under the rubric of law and economics, have yielded a much more sophisticated understanding of the law and of the relationship between the values inherent in business competition and other social and political values, including the protection of free speech in a commercial context. It is thus timely that this work now be presented.
The Reporters, aided by the Advisers, the Members Consultative Group, and suggestions from outside commentators, have been fully alive to the foregoing developments. Those having occasion to consult this work, whether specialists in the field or otherwise interested, will find it an admirable example of professional scholarship. The writing is crisp, the underlying analysis is clear, and the Illustrations are pointed. Ample and careful supporting references have been provided in the Reporter's Notes.
The Reporters have carried the enterprise forward in estimable fashion, presenting their views thoughtfully and forcefully but being always respectful of suggestions and receptive to those that improved the work. We congratulate them on setting a high standard and thank our colleagues on the Advisory Committee and the Members Consultative Group for upholding that standard through their contributions.


Foreward from the Restatement (Third) of Unfair Competition Foreword (1995).