Graeme B Dinwoodie and Ansgar Ohly (eds),
Research Handbook on Unfair Competition and Passing Off (Edward Elgar,
forthcoming 2026)

Abstract

The prohibition of false and misleading advertising should
be the prototypical example of unfair competition law. False and
misleading advertising, after all, is generally held to be unequivocally
bad, even if punishing every instance would be more costly than it’s
worth. But most of modern unfair competition law, at least in the United
States, is focused on different things—more in the realm of trademark
law (and sometimes antitrust), and I think to its detriment. As
trademark’s scope has ballooned, and as the law has tolerated more and
more monopoly power, it has also tolerated more and more false
advertising. A rebalancing towards false advertising could strengthen
the field of unfair competition as a whole.