Apologies: I couldn't make detailed notes on this session: a combination of screen-freezes and poor internet connection proved too great a challenge ...
"Fortunately we no longer live in Feudal times", said Professor Anselm Kamperman Sanders in his opening comments on the session entitled "Trademarks and Unfair Competition", moderated by Axel Nordemann. Anselm gave a masterly overview of the conception, birth and early years of the concept of unfair competition from even before the creation of the European common market. Anselm spoke warmly of the role played by Rudolf Callmann and the architecture of a set of laws addressing unjust enrichment and the protection of consumer choice as well as the prevention of unfair competition; he believed that a small amount of confusion was not necessarily harmful if consumers learned from it and if it also ultimately enhanced competition.
Gordian Hasselblatt (CMS Hasche Sigle), who discussed the "protective purpose" of trade marks and their relation to principles of unfair competition. As trade mark protection has expanded to embrace the protection of well known marks where there is no risk of confusion, it has provided the sort of protection which was once within the scope of unfair competition law.
Myrtha Hurtado Rivas (Novartis AG), who gave a strategic overview of the trade mark v unfair competition position from the standpoint of a business that had to make decisions as to how -- and where -- to enforce its rights and protect its interests in the Europe of today -- and beyond. Issues such as local variations in evidential and procedural requirements and choice of witnesses must be addressed. For a pharmaceutical company, the most sensitive point of time is the moment its products come off patent, when branding and trade dress are of critical importance. Myrtha cited the specific example of EXELON patches for the delivery of a treatment for Alzheimer's, which is currently the subject of ongoing litigation both in Europe and beyond it. Gaining evidence of distinctiveness of a patch which is contained within both primary and secondary packaging is quite a complex exercise, but this had to be done before proceedings could be brought for trade mark infringement and unfair competition against a manufacturer of a lookalike generic product, showing a Hamburg court that a proportion of medical practitioners could themselves be confused.