36
Fellner (op. cit p. 200) refers to the ways in which
"foreign jurisdictions selectively
control slavish imi¬
tation through their unfair competition laws", saying:
"In the absence of specific in¬
dustrial property rights, by no
means all copying is prohibited;
but where it is felt to be 'unfair',
the law will provide a remedy.
As
well as the fact of copying, the judge
can consider the scale of the plain¬
tiff's initial investment, the ori¬
ginality and commercial success of
his product, the ease with which it
was copied, the technical and commercial
feasibility of product differentiation,
and the economic sense or nonsense
of requiring investment in redesign¬
ing a satisfactory product from
scratch.
He can also scrutinise the
behaviour of the parties, taking ac¬
count, for example, of any unfairness
in the way information was obtained,
impropriety
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