We are delighted to announce the next LIDC Congress will be held in London on 7-9 November
The questions that will be discussed are set out as follows:
Question A
(UK National Reporters: Anna Morfey & Helen Bignall)
WHAT PROGRESS HAS BEEN MADE, AND IS STILL TO BE MADE, IN ENSURING EFFECTIVE REDRESS FOR HARM RESULTING FROM INFRINGEMENTS OF COMPETITION LAW?
Background & Context:
It is generally accepted that private enforcement has an important role in increasing the effective functioning of competition regimes globally and that individuals and/or firms who suffer harm as a result of anti-competitive conduct should be entitled to compensation for their loss(es). Consequently, interest in, and the significance of, this aspect of the competition law ‘toolkit’ continues to grow.
There have been a number of initiatives in various jurisdictions to promote more private enforcement and provide the necessary legal and economic framework for this purpose. For example, in November 2014, the EU Damages Directive, which harmonised certain procedural rules for competition damages actions across all EU Member States (including the United Kingdom at the time) and sought to establish a level playing field across the EU, entered into force. Together with the 2013 Recommendation on Collective Redress, the Damages Directive was intended to make it easier for victims of anti-competitive conduct to obtain compensation.
During the past decade, the use of private enforcement of competition law has increased throughout Europe and beyond. However, the intensity and experience of private enforcement is very mixed. Some jurisdictions have considerable experience in dealing with damages actions, however, in others private actions are rare.
Major differences still exist among jurisdictions, even between the EU Member States. For example, in a number of Member States, there have not yet been any court rulings applying the provisions of the Damages Directive and, for temporal application reasons, many rulings are still based on pre-existing national law.
The 10th Anniversary of the EU Damages Directive provides the LIDC with an opportunity to take a critical look at how private enforcement has evolved around the world, taking stock of the progress that has been made and what obstacles remain, considering how these might be overcome to ensure: effective redress; and a balance between public and private enforcement.
National groups are invited to provide an account of the emerging practices and trends in private enforcement of competition law in their respective jurisdictions from a legal and economic perspective, reflecting on various factors such as: the relevant legal instruments; institutional developments; applicable jurisprudence; the relevant procedural, legal and economic framework; and key practical and litigation issues.
Question B
(UK National Reporter: Dr Luminita Olteanu)
HOW SHOULD WE APPROACH ‘COPYCAT’ PACKAGING?
Background & Context:
It is often said that “imitation is the sincerest form of flattery”, however the proliferation of high-profile disputes in recent years concerning ‘copycat’ packaging, product names, and/or ‘look-alike’ product design suggests that brand owners view such practices less as a compliment and more as harmful to their businesses and misleading for consumers.
In some jurisdictions brand owners rely on unfair competition law to prevent competitors selling products in copycat packaging. In other jurisdictions, however, claims are based on one or more form of IP infringement (e.g. trade mark, registered design, and/or copyright infringement, and/or “passing off”).
Claims can be challenging from a legal, evidential and practical perspective. It also raises concerns as to whether there is a gap in the law or sufficient protection, as well questions about the potential impact of divergencies in approach and legal basis.
A key consideration is the risk of business being diverted from brand owners who have made significant investments and the potential market distortion. There are also questions of goodwill and brand reputation management. For retailers (and others using copycat packaging) there are concerns about (unwarranted) restriction of market access as a result of enforcement action. As regards consumer protection, there is also the question of whether consumers are truly being misled, or whether they are aware that they are purchasing a cheaper alternative product to the branded product/market leader, especially when faced with the current ‘cost of living crisis’.
With this in mind, and in order to identify any areas of divergence/convergence internationally, National groups are invited to provide an account of the existing legal framework, case-law, and emerging practices and trends concerning similar packaging in their respective jurisdictions and whether/how this seeks to strike the balance between recognising brand owners’ investment and interests, protecting consumers from confusion and ensuring fair market access for look-alike products.
