Legal Memorandum: Unfair Competition Claims in VI

Issue: Under the law of the Virgin Islands, what must a plaintiff establish to prevail on a claim of unfair competition?

Generally, “unfair competition” applies when one “causes harm to the commercial relations of another by engaging in a business or trade” and

(a) the harm results from acts or practices of the actor actionable by the other under the rules of this Restatement relating to:

(1)  deceptive marketing, as specified in Chapter Two;

(2) infringement of trademarks and other indicia of identification, as specified in Chapter Three;

(3)  appropriation of intangible trade values including trade secrets and the right of publicity, as specified in Chapter Four;

or from other acts or practices of the actor determined to be actionable as an unfair method of competition, taking into account the nature of the conduct and its likely effect on both the person seeking relief and the public; or

(b) the acts or practices of the actor are actionable by the other under federal or state statutes, international agreements, or general principles of common law apart from those considered in this Restatement.

Restatement (Third) of Unfair Competition, § 1.  In particular, the appropriation of trade values applies to an intangible business asset created through an investment of time, money, or effort.  Id. at cmt. f.  The recognition of such a right stems from the perceived unjust enrichment to the offending party, but such perceptions may be outweighed by advantages of unrestricted imitation of information in the public domain.  Id.  “A primary purpose of […]