Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing

This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.