YEAR 2017 N.º 2
Ana Clara Azevedo de Amorim
Unfair Competition; Supreme Court of Justice; dual protection; consumers; social model; functional interpretation.
In the Portuguese legal system, the unfair competition is still mainly understood as a guarantee mechanism of the positions acquired by economic agents in their mutual relationships, considering the need to avoid the diverting of others’ clientele. However, addressed mainly from an evolutionary dimension, the case law of the Supreme Court of Justice demonstrates that the discipline also aims now the protection of consumers’ interests, as appears particularly from the registration refusal of distinguishing signs. This development is based on the scope of application and on the normative criteria laid down in the general clause, which correspond respectively to the act of intervention on the market and the good faith, as an alternative to competitive relationship and the commercial ethics. Contrary to what happens in the social model, the private law behavioral perspective adopted in unfair competition excludes the guarantee of the public interest on the regular functioning of the market.