The actions for passing off and for the infringement of registered trade marks in Maltese law

Abstract

Both notions which form the subject of this thesis aim at protecting the rights which arise from the use of the numerous 'indicia' by which the business a trader carries on and the goods he deals in are identified with him and distinguished from the business of his competitors in trade and from the goods, which though similar to his, appertain to his competitors: in other words the said two sections aim at protecting traders from unfair or unlawful competition. It follows therefore, that no study, however limited in its scope, of the said two actions would be complete without an introductory reference to what constitutes unlawful competition in trade. Competition in trade is but the natural consequence of the struggle for survival amongst traders, which is due to the fact that wealth is limited. In order to expand their sphere of activity, traders have to resort to competition which, from the economic point of view, is highly beneficial to the consumers. The law, therefore, does not merely tolerate competition but actually encourages it, so long as the rights of third parties are not thereby infringed. Competition may be defined as "that reciprocal relationship existing between persons who, by the use of certain means, aim at an objective which they cannot at all attain." The rivalry existing between traders necessarily causes them damage, but the law does not intervene so long as the harm suffered is the result of lawful competition.