Vanderbilt Law Review


W. Edward Sell

First Page



The last fifty years have witnessed a tremendous surge in American businesses, both in number and in size. With this development, new methods of doing business have been devised. Although these methods are generally designed to increase competition in our economy, not all of them are considered ethical or fair. Some of these unfair or unethical practices are now controlled, within limitations, by the Federal Trade Commission. The remaining acts or practices must be controlled by other means within the framework of the law. The legal touchstone in such instances is "unfair competition." One of the greatest problems in this area is the fact that these acts which are considered unfair are not easily catalogued or typed. They are limited in kind and method only by man's ingenuity. Furthermore, any particular act is difficult to classify as "fair" or "unfair.""The line of demarcation between fair and unfair competition is seldom easy to draw. Subtlety rather than openness characterizes the encroachment upon the rights of a competitor legally in possession of the market."' Probably the best statement on this matter was made by Mr. Justice Pitney in International News Service v. The Associated Press: "Obviously, the question of what is unfair competition in business must be determined with particular reference to the character and circumstances of the business."The law of unfair competition has been developed to protect interests which are not given specific protection by other legal principles, such as patents, copyrights, trademarks or contracts, expressor implied. Our economy is one based on free competitive enterprise. Our public policy is designed to promote this competition. The law restrains this free competition only when some element of unfairness is added. In fact, it can well be said that it is no longer free competition when this element is present.