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"Public morals" and "honest practices" in German and Canadian unfair competition law : a proper means of responding to new challenge? Buss, Thomas


The thesis focuses on the use of general terms in unfair competition law in the common law jurisdiction of Canada and the civil law jurisdiction of Germany. It describes how the terms "public morals" in the German Act Against Unfair Competition and "honest practices" in the Canadian Trade-marks Act are defined and interpreted by the courts in these two different jurisdictions. While the German term more or less constitutes unfair competition law alone, the Canadian term has in the field of intellectual property a very controversial and dubious residual meaning. The analysis of Canadian judgments indicates three reasons for this significant difference in the importance of both terms. The first and most important reason is the difference in both Constitutions as to the division of powers. While the German term could be defined within the whole scope of civil law, the Canadian term from the very hour of its birth was limited to the subject-matter "trade and commerce" as interpreted by the J.C.P.C. and now the Supreme Court of Canada. The second reason is the different origin of unfair competition law in both countries. Being closely connected to the protection of trade-marks, Canadian unfair competition law was never and still is not concerned with practices that have little or nothing to do with direct interference with a competitor's proprietary rights. On the other hand, unfair competition law in Germany was and still is considered to be distinctive from intellectual property protection under other acts. Although the Act Against Unfair Competition was originally understood to be an instrument to protect the trader against dishonest competitors, the term "public morals" remained open to further interpretation beyond the protection of a businesses reputation, and focuses on the consumers' interests in the first place. The third reason is the coexistence of unwritten and written law in Canada's common law jurisdiction. Some judgments support the idea that Canadian courts were not willing to go beyond well established common law principles for the interpretation of the term "honest practices". Having shown these practical ways of interpretation the thesis shifts to the more theoretical question of whether the use of general terms is a constitutional means of reacting to new phenomena of social behaviour. First, it will be pointed out that the constitutional principle of vagueness sets a limit to the legislator's decision to refrain from a detailed regulation and to use instead general and intentionally imprecise terms. Secondly, the question will be addressed as to how Charter rights can influence the courts' interpretation of general terms.

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