Global Guardrails Against Unfair Competition: The Role of the Paris Convention

When businesses compete, the line between aggressive strategy and outright dishonesty can get blurry. A company might copy a competitor’s packaging, spread false claims about a rival’s product, or run ads that mislead consumers into thinking they’re buying something they’re not. Left unchecked, these practices don’t just harm competing businesses – they erode consumer trust and destabilise markets. This is precisely why the international community developed a shared framework to address such conduct. At the heart of that framework is the Paris Convention for the Protection of Industrial Property, and more specifically, its landmark provision on unfair competition – Article 10bis.

The Paris Convention: more than just patents and trademarks 🔗

The Paris Convention, first signed in 1883, is one of the oldest and most widely adopted international intellectual property treaties. With over 177 contracting parties, it covers patents, trademarks, industrial designs, trade names, and importantly, the repression of unfair competition. The Convention operates on the principle of national treatment – member countries must extend the same level of protection to foreign nationals as they do to their own citizens. What makes the Convention particularly significant in the context of unfair competition is that it does not treat these protections as peripheral. The very definition of “industrial property” under the Convention explicitly includes the repression of unfair competition as one of its core objects.

Article 10bis was introduced at the Brussels Diplomatic Conference in 1900, in response to a growing recognition that self-regulation by industry associations was insufficient to curb dishonest market conduct. The provision was added to try and prevent unfair competition in a more binding, internationally coordinated way. It has since become the foundational international norm in this field.

What Article 10bis actually says 🔗

The text of Article 10bis is structured across three paragraphs, and each one carries real legal weight.

Paragraph 1 lays down the core obligation: member countries of the Union are bound to assure their nationals effective protection against unfair competition. This is not a suggestion – it is a mandatory commitment undertaken by every signatory state.

Paragraph 2 provides the definition: any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition. The phrase honest practices is deliberately broad. The honest practices test need not be understood in a traditional, empirical sense – modern approaches allow courts and legislators to apply it functionally, balancing fairness between competitors with broader goals like consumer protection and market integrity.

Paragraph 3 identifies three specific categories of conduct that must, at minimum, be prohibited by every member state. These three prohibited acts form the operational core of the Article and deserve a closer look.

The three prohibited acts under Article 10bis(3) 🔗

1. Causing confusion 🔗

The first category covers acts that create – or are likely to create – confusion with respect to a competitor’s establishment, goods, or activities. Even the likelihood of confusion having a detrimental effect comparable to actual confusion constitutes an act of unfair competition, which substantially widens the scope of protection. This can arise from the unauthorised use of a trademark, the imitation of product packaging, or the copying of a brand’s visual identity – whether registered or not. In the Indian context, the tort of passing off is the primary legal tool that corresponds to this obligation. The tort of passing off is the most frequently utilised form of unfair competition prevention in India, rooted in the common law principle that a trader cannot sell their own goods by misrepresenting them as belonging to someone else.

2. Discrediting a competitor 🔗

The second category targets false allegations made in the course of trade that are designed to discredit a competitor’s establishment, goods, or activities. This goes beyond mere criticism – it requires the allegation to be false and damaging. Acts that dilute the effect of a trademark, destroy its originality or distinctive character, are considered unfair under this broader reading. Disparagement campaigns, fabricated negative reviews, or comparative advertising that relies on false data all fall within this prohibited category. The key distinction is between legitimate competitive commentary and deliberate reputational sabotage.

3. Misleading the public 🔗

The third category prohibits indications or allegations that mislead the public as to the nature, manufacturing process, characteristics, suitability, or quantity of one’s own goods. This is significant because, unlike the first two categories which focus on harm to a specific competitor, this prohibition is squarely directed at consumer protection. The use of the term “public” in Article 10bis(3) implies that the prohibition is intended to cover situations where deceptive indications are directed at the consumer, signalling a deliberate departure from a purely competitor-focused framework. Misleading health claims, false country-of-origin labels, or inaccurate quality representations are all examples of conduct that fall within this category.

Article 10ter: the remedies provision 🔗

Article 10bis does not stand alone. It is complemented by Article 10ter, which obligates member countries to provide appropriate legal remedies to effectively suppress acts of unfair competition. Countries of the Union undertake to assure nationals of other member countries appropriate legal remedies effectively to repress all the acts referred to in Articles 9, 10, and 10bis. Without this remedies provision, the substantive rights in Article 10bis would risk being unenforceable in practice. The two provisions work in tandem – one defines the wrong, the other ensures a legal path to address it.

The TRIPS Agreement and the extended reach of Article 10bis 🔗

The obligations under Article 10bis do not apply only to signatories of the Paris Convention. By virtue of Article 2(1) of the TRIPS Agreement, all WTO Members are also required to comply with the substantive provisions of the Paris Convention, including Article 10bis. This means the international obligation to protect against unfair competition extends across the vast majority of the world’s trading nations. This obligation is reinforced by Article 2 of TRIPS, which obliges WTO members to comply with the Paris Convention. India, as a WTO Member, is bound by this obligation – and this linkage is what gives the Paris Convention framework its truly global reach.

Furthermore, Article 39(1) of TRIPS explicitly links trade secret protection to Article 10bis, requiring WTO Members to protect undisclosed information “in the course of ensuring effective protection against unfair competition as provided in Article 10bis.” This extension shows how the Paris Convention’s unfair competition framework has continued to grow in scope and relevance even decades after its drafting.

The 1996 WIPO Model Provisions: operationalising the framework 🔗

Recognising that Article 10bis left many implementation questions open to member states, WIPO published Model Provisions on Protection Against Unfair Competition in 1996 to provide more detailed guidance. These Model Provisions expanded on the three core categories of Article 10bis and added new ones, including acts damaging goodwill or reputation, unfair competition in respect of secret information, and broader provisions on misleading conduct.

Significantly, the Model Provisions include consumer protection, the departure from the requirement of a competitive relationship, and a broad approach to confusing, discrediting and misleading acts – reflecting an evolution in thinking about what unfair competition law is meant to achieve. The general clause in the Model Provisions also removes the strict requirement that the parties be in direct competition, meaning that an indirect competitive relationship is sufficient. This flexibility allows the framework to adapt to modern market realities.

The WIPO Model Provisions define even an omission as a potential act of unfair competition – for instance, failing to correct inaccurate product information published in a consumer magazine, thereby giving buyers a false impression of quality, can constitute unfair conduct. This expansive reading ensures that the framework remains practically effective, not just theoretically sound.

Consumer protection as an integral part of unfair competition law 🔗

One of the most important insights from the Paris Convention framework – and from the WIPO Model Provisions that followed – is that unfair competition law is not solely about protecting businesses from each other. The third category of Article 10bis(3) makes this explicit by targeting misleading conduct directed at the public, not just at rivals. More modern, functional approaches can be adopted to align Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace.

This dual orientation – protecting both competitors and consumers – reflects a mature understanding of how markets actually function. Deceptive trade practices simultaneously harm the consumer who is misled and the honest business whose reputation or market share suffers as a result. By addressing both simultaneously, the Paris Convention framework creates incentives for honest commercial conduct across the board. It signals that the international community views business ethics and consumer rights not as separate concerns, but as deeply intertwined.

How the framework applies in India 🔗

India has been a member of the Paris Convention since 1998 and is also a WTO Member bound by TRIPS. Indian law implements several of the Article 10bis obligations, albeit through a patchwork of statutes and common law torts rather than a single unified unfair competition statute. There is no equivalent of the general clause in Article 10bis(2) to be found in Indian law – unlike some jurisdictions that have enacted standalone unfair competition legislation, India relies on passing off, the Trade Marks Act, 1999, the Consumer Protection Act, 2019, and sector-specific regulations to fulfil these obligations.

Notably, the Geographical Indications of Goods (Registration and Protection) Act, 1999 directly incorporates the language of Article 10bis(2). Infringing acts under the GI Act include unauthorised use in a manner which constitutes an act of unfair competition, and the explanations to this provision adopt the language of Article 10bis(2), applying to “any act of competition contrary to honest practices in industrial or commercial matters.” This statutory acknowledgment reflects India’s recognition of the Paris Convention framework in domestic legislation.

Why this international consensus matters 🔗

The significance of the Paris Convention framework goes beyond any individual case or country. It establishes a global minimum standard – a floor below which no member state’s protection should fall. Without this shared baseline, businesses operating across borders would face a fragmented, unpredictable legal environment where what is prohibited in one market is perfectly acceptable in another. The honest practices test in Article 10bis(2) offers sufficient room for national legislators and courts to adopt a functional approach, deriving standards of integrity and fairness from the requirements of a free market economy. This balance between international consistency and national flexibility is what has allowed the framework to remain relevant for over a century.

At the same time, the framework faces new challenges. Current developments – ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability – raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary. These are debates that WIPO and its member states, including India, will need to engage with as the digital economy continues to reshape competitive conduct in ways that the drafters of the Paris Convention could not have anticipated.

What do you think? Given that India lacks a single, standalone unfair competition statute, does the current patchwork of laws – passing off, consumer protection legislation, and IP statutes – adequately fulfil India’s obligations under Article 10bis of the Paris Convention? And as digital markets evolve with practices like influencer marketing and algorithmic advertising, should the international community revisit and update the catalogue of prohibited acts in Article 10bis?

References

1. https://www.wipo.int/wipolex/en/text/288514
2. https://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/Protection_against_unfair_competition
3. https://academic.oup.com/jiplp/article/19/2/81/7577520
4. https://academic.oup.com/jiplp/article/19/2/119/7470754
5. https://www.wipo.int/documents/d/sct/docs-en-meetings-pdf-wipo-strad-inf-8-prov.pdf
6. https://www.wto.org/english/docs_e/legal_e/27-trips_04d_e.htm
7. https://www.researchgate.net/publication/226307265_Protection_Against_Unfair_Competition_at_the_International_Level_-_The_Paris_Convention_the_1996_Model_Provisions_and_the_Current_Work_of_the_World_Intellectual_Property_Organisation
8. https://www.researchgate.net/publication/377560342_Article_10_bis_of_the_Paris_Convention_as_the_common_denominator_for_protection_against_unfair_competition_in_national_and_regional_contexts