Striking a balance between protecting commercial reputation and promoting competition

Recent emphasis on the effect of the grant of intellectual property rights on competition has focused largely on "substantive" intellectual property rights (copyright, patents, designs), rather than on reputation (registered and unregistered marks, passing off). Arguably the nature and extent of rights in goodwill has a more direct and significant effect on the competitive operation of markets because established reputation is a formidable barrier to entry. In this light, the recent expansion of legal protection for trade marks should be closely scrutinised. It is important to maintain a productive balance between the legitimate ambitions of individual traders and the public interest in dynamic markets.