Reaping without sowing : proprietary rights in the law of competition

Abstract

It is a well established principle that in a free market economy competition is a central feature. It is competition which controls price, quality and availability of goods and services to the public. In fact, competition has been defined as "the great regulative force which establishes effective control over economic activities". Competition, therefore, is the process through which similar goods are created and distributed, and services provided. It is a process that effects of which are greatly beneficient; it benefits trade in general in that it creates the required atmosphere for a helthy expansion of wealth; it benefits the traded in driving him to better efforts in the course of his business activities; it also benefits the consumer who is presented with a wide range of products or services to choose from. The question then arises whether competition should be left completely unrestrained. It is a fact that in the field of commerce one trader cannot succeed in his endeavours without causing injury to a rival trader because the goal to be achieved is one and not all can achieve it; what one trader wins will be lost to his rivals. Since this is an inevitable state of affairs, which Callmann refers to as the "order of the struggle", one must expect the rivals in this struggle to attempt all possible means to reach this goal. However, this way affect the "order of the struggle" adversely. In this regard, most authorities are of the opinion that competition must be regulated in one way or another in order to prevent any adverse affects on a "struggle"which, if carried out in an "orderly" fashion, should be very fruitful. In line with this trend of thought it has been specifically held that a free market economy does not imply unrestrained competition; in order to achieve a more competitive market there has to be some legal regulation of the "struggle".