On the basis of certain articles of the Civil Code a far-sighted and extensive system of jurisprudence has been developed by the French courts, which has been followed, more or less closely, by Belgium, Holland, Italy, and the Swiss federal court at Lausanne.

Two fundamentally different views also underlie the German and the French conceptions of what constitutes the essence of unfair competition. According to the theory of French jurists,1 the relations between a business man and his customers constitute a commercial property right, or good will, known as "achalandage," and whoever knowingly injures it commits an unlawful act and makes himself liable for damages. A violation of such a right constitutes unfair competition (concurrence déloyale) if it involves intent, and unlawful competition (concurrence illicite) if it involves negligence.2

According to the view largely prevalent among German jurists unfair competition (unlauterer Wettbewerb) constitutes a violation of the rights which every individual has to his physical and intellectual property, the so-called "Persönlichkeitsrecht."3

An important point as to which the German and the French views concerning unfair competition coincide is that the deciding and controlling viewpoint for legislative suppression of unfair competition is not the protection of the public or consumers, but the protection of fellow tradesmen or competitors.*

INTERNATIONAL LAW.-The final section of this chapter deals with international treaties respecting unfair competition and various efforts to develop a common international law on this subject. The principal aim of such treaties and the international propaganda referred to, is the protection of the names of commercial concerns, trade-marks, designations of provenance, etc.-in other words, the protection of "industrial property."

Section 2. England and Colonies.

The English common-law decisions respecting unfair or unlawful methods of competition, and a limited number of colonial cases have been considered with American cases of this character in Chapter VII. The English decisions are discussed there in order to show in one place the common law on the subjects treated, the decisions of the English and American courts being usually grounded on the same legal principles. In this section therefore statutory provisions only will be considered. The subjects covered are bribery of employees; exclusive contracts; intimidation by threats of infringement suits; trading-stamp laws; misbranding or falsely marking goods; false or misleading advertisements; and dumping. The provisions of the

1 Rosenthal, in "Handwörterbuch d. Staatswissenschaften," 3d ed., vol. 8, p. 793. Lobe, "Die Bekämpfung d. unlauteren Wettbewerbs," 1907, I, p. 80.

Josef Kohler, "Der Unlautere Wettbewerb," 1914, p. 17 fol.

66

4 C. Weiss, Gesetz gegen d. unlauteren Wettbewerb," 1910, p. 3 fol.

Australian Industries Preservation Act respecting unfair competition, while among the most important in this section, are considered separately for the reason that the act is somewhat long and intricate, and does not readily lend itself to a topical treatment. The laws regarding unfair competition in Egypt, which was recently declared a dependency of England, are also treated separately, since the jurisprudence of that country has had an independent development.

BRIBERY OF EMPLOYEES.-In 1898 a special committee of the London Chamber of Commerce (representing 20 trade sections of that organization) made an investigation to determine the prevalence of the practice of paying secret commissions and bribes in the various trades and submitted an exhaustive report from which the following is an excerpt:

Your committee conclude from the evidence before them that secret commissions in various forms are prevalent in almost all trades and professions to a great extent, and that in some trades the practice has increased, and is increasing, and they are of opinion that the practice is producing great evil, alike to the morals of the commercial community and to the profits of honest traders.

Bribes in all forms, including secret commissions, owe their existence sometimes to the desire of the donor to obtain the assistance of the donee; sometimes to the demand expressed or implied of the donee that the bribe shall be given.

In the first class of cases your committee have reason to believe that the bribe is often given unwillingly and with a pang of conscience, as the result of the keen competition in trade, and in the fear, too often well founded, that unless given other less scrupulous rivals will obtain an advantage; many cases have come before your committee in which traders have believed (often, though not perhaps always, without reason) that their entire failure to obtain orders has been due to the want of a bribe.

The second class of cases are those in which the recipient extorts the bribe from those who have established business relations with his principal. This practice is rendered more effective and oppressive by a combination between the blackmailers. The servant or agent who demands a commission and fails to receive it, not infrequently warns his fellows in the same position in the trade against the honest trader, who thus finds himself shut out from dealings with a whole circle of firms.1

In 1899 Lord Russell of Killowen, then Lord Chief Justice, introduced a bill which he had drafted in conjunction with Sir Edward Fry, the object of which was "to check, by making them criminal, a large number of inequitable and illegal secret payments, all of which are dishonest, and tend to shake confidence between man and man, and to discourage honest trade and enterprise." The bill was not passed, but an act having a similar object was assented to in 1906. This act provides that it shall be a misdemeanor, punishable by imprisonment

1 London Chamber of Commerce, Annual Report, 1898, p. 117; Great Britain, Parliamentary Debates, Apr. 20, 1899, pp. 14-15.

2 Great Britain, Parliamentary Debates, 4th series, vol. 70 (1899), pp. 14, 21.

with or without hard labor, for not exceeding two years, or by a fine not exceeding £500, or both—

If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favor or disfavor to any person in relation to his principal's affairs or business; or

If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favor or disfavor to any person in relation to his principal's affairs or business; or

If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested and which contains any statement which is false or erroneous or defective in any material particular and which to his knowledge is intended to mislead the principal.1

Prosecutions for offenses under this act may not be instituted without the consent in England of the attorney general or solicitor general, and in Ireland of the attorney general or solicitor general for Ireland.2

This law checks not only the practice of bribing buyers or other employees for the purpose of obtaining orders, but the bribery of employees to induce the disclosure of confidential information respecting their employers' business. Shortly before the act became effective the Secret Commissions and Bribery Prevention League was organized for the purpose, among other things, of creating public opinion adverse to corrupt trading in any form, of publishing literature, including the setting forth of the results of trials and convictions under the prevention of corruption act, and of inquiring into cases involving the payment of secret commissions, blackmail, bribery or corruption, and initiating prosecutions under the act. The membership of this organization includes leading commercial firms, and a number of trade associations are affiliated with it. Since this law became effective there have been some 130 prosecutions, of which 87 have resulted in conviction. Of these, 12 involved the disclosure of confidential information.

1 The Prevention of Corruption Act, 6 Edw. VII, ch. 34.

2 An unsuccessful attempt to repeal this provision was made in 1912. It has been urged, on the one hand, that it diminishes the possibility of blackmail, and, on the other, that it seriously interferes with the successful operation of the act. Sir Edward Fry expressed the belief that "attempts to put the act in force should be relieved from the burden of two trials, the one in camera before the law officer of the Crown and the other before the justices, with the possibility of a committal to the assizes. The necessity of putting evidence before the law officer increases the expense and also causes delay, which in this case is especially serious."

3 Compare Verein gegen das Bestechungsunwesen in Germany, see p. 636.

The following references to convictions under this law have been selected from "The War Against Bribery,"1 Crew on Secret Commissions and Bribes, and a publication of the Secret Commissions and Bribery Prevention League: 3

The managing director of a London printing company was in the habit of paying a secret commission to a clerk employed by the Gramophone & Typewriter Co. (Ltd.), whose monthly account for printing averaged at the time upward of £100. The clerk took the printing from one firm and gave it to the company whose principal bribed him, and it was stated that the Gramophone & Typewriter Co. effected a saving by the change. The clerk himself received some £40. When the case came before the magistrate at Old Street Police Court the magistrate pointed out that the payments to the clerk were fraudulent before the passing of the act, and he expressed his regret that he was compelled to impose so very inadequate a penalty. He fined the printer the maximum, £50, with £10 10s. costs, and ordered the clerk to pay £50 and £2 2s. costs.

The secretary of a boot manufacturing company in the country for attempting to bribe the manager of the boot department of some stores in London with a view to obtaining orders was fined £10 and £5 5s. costs.

A commercial traveler at Leicester employed by soap manufacturers sent 10s. 6d. to an employee at [certain] dye works. He was fined £20 and £5 5s., court costs and witnesses' costs.

At the central criminal court a blouse manufacturer (female) was indicted for offering as an inducement to obtain work a share of profits to the employees of a firm of drapers. She was released on entering into recognizances to come up for judgment if called upon.*

The managing director of a chemical manufacturing company in Switzerland sought to obtain secrets in connection with the manufacture of silica, offering bribes to the employees of a British company engaged in the industry. He was sentenced to six months' hard labor, and a friend who aided him and one of his commercial travelers were also sent to prison--the former for four months and the latter for one month, hard labor being ordered in each case. The trial took place at Newcastle Assizes, and both the longer sentences were appealed against unsuccessfully." The appellants were also further convicted on an additional charge of corruptly offering employment to an agent of the Thermal Syndicate, in order to induce him to disclose the method of manufacturing silica employed by his principals. The appeal was brought before the lord chief justice, Mr. Justice Bray, and Mr. Justice Coleridge. In affirming the judgment the court said in part:

"Mr. Justice Horridge directed the jury quite correctly on the law; he told them they could not convict if the alleged bribes were given simply to induce the men to leave their present employment and enter the service of the applicant, Huessener, or his company, Silicaware (Ltd.), who were rivals of the Thermal Syndicate (Ltd.), but they must convict if they are satisfied that the bribes were given to induce the men to disclose their master's secret methods of manufacturing silica and the names of the persons supplying molds to them. He also pointed out, and quite correctly, that if the jury were satisfied that the bribes were given for the above-mentioned purpose they were bound to convict, 1 By R. M. Leonard, London, 1913, pp. 39-40.

2 London, 1913, pp. 91-93.

3 News Sheet No. 34, Nov., 1914.

4 Rex v. Walz, C. C. C., 621.

Б Appeal of Iuessener and Schroeder, 6 Cr. App. Rep., 173.

even if they were also satisfied that the applicants wished in addition to secure the services of these men for their company at Zurich."

A young German was charged at Manchester with giving money to the employees of some textile printers and velvet embossers carrying on business at Leeds, in order to discover a secret process of printing velvet. He was fined £50 and costs, in addition to £100 which he offered as compensation to the Leeds company.

A chemical worker was fined at Northwich £20 or two months' imprisonment for offering bribes to obtain trade secrets and drawings of apparatus. For receiving stolen documents he was also fined £5 or one month's imprisonment.

At Reading a quantity clerk formerly employed by a firm of boiler setters asked a contractor employed by the firm for information as to any new trade inquiries made by his former employers, so that he also might tender in competition for the work. A fine of £5 and £5 costs was imposed.

At Hull a commercial traveler was fined £10 for offering bribes to a boy to give him confidential information about his employer's business.

A youth employed by a clean-towel company for promising to pay boys for a list of the customers of a rival company was found by the magistrate at Westminster to have committed a breach of the act. He was ordered to pay £2 2s. costs.

A bottle manufacturer at London for offering a clerk in the bottle trade a bribe (£5) for information concerning his employer's business was fined £20 and £10 10s. costs.

An emigration agent at Liverpool for attempting to bribe (offering £2 to £25) a ship's doctor to pass unhealthy emigrants was fined £50 and one month's imprisonment, to be followed by deportation, and £10 10s. or three months' additional imprisonment.

A motor agent at London for offering "compensation" to the motor expert of a soap manufacturing firm, in order to obtain a contract for lorries, was fined £15 and £5 5s. costs.

A timber merchant at Nuneaton for sending £1 to an agent of a colliery company as an inducement to measure poles wrongly was fined £50.

An act of the Canadian Parliament assented to May 19, 1909,1 prohibits the giving or offering of bribes and the giving or using of false or misleading documents. This act is substantially similar to the English statute previously discussed. It is, however, unnecessary to obtain the consent of the attorney general before instituting a prosecution.2

Legislation prohibiting the giving or offering of bribes, and the giving or using of false or misleading receipts or other documents,

18-9 Edw. VII, ch. 33.

2 In The King v. Vici, 18 Canadian Crim. Cases, 51 (1911), the defendant was charged with having received a secret commission of $5,000 as a reward for undertaking to make a favorable report respecting certain mining lands. In the language of the court, "the accused was employed for a fixed sum, namely, $400, to do certain intellectual workthe examination of mining lands. That is an independent contract-a hiring of personal services, and nothing more. He was then neither the agent' nor the employee' within the meaning of the act." The defendant was discharged.

See also Winnipeg Steel Granary & Culvert Co. (Ltd.) v. Canada Ingot Iron Culvert Co. (Ltd.) et al., 7 Dominion Law Reps., 707 (Manitoba Ct. of Appeals, 1912).