Chapter 17.11  
2020 Revised Edition  
  
  
  
  C 
T 
PROTECTION AGAINST U NFAIR 
COMPETITION ACT  Protection Against Unfair Competition Act    CAP. 17.11 Arrangement of Sections  
 
 
to 2020 Revised Edition  Page  3 
   
 C 
T 
PROTECTION AGAINST U NFAIR COMPETITION 
ACT  
Arrangement of Sections  
Section  
1 Short title ................................ ................................ ................................ ..........  5 
2 Act binds th e Crown  ................................ ................................ ........................  5 
3 Interpretation  ................................ ................................ ................................ .... 5 
4 General principles  ................................ ................................ ............................  6 
5 Causing confusion with respect to another's enterprise  ................................ ... 6 
6 Damaging another's goodwill or reputation  ................................ .....................  7 
7 Misleading the public  ................................ ................................ .......................  7 
8 Discrediting another's enterprise  ................................ ................................ ...... 7 
9 Unfair competition in respect of secret information  ................................ ........  8 Protection Against Unfair Competition Act    CAP. 17.11 Section  1 
 
 
to 2020 Revised Edition  Page  5 
   
 C 
T 
PROTECTION AGAINST U NFAIR COMPETITION 
ACT  
AN ACT TO MAKE PROVI SION FOR PROTECTION AGAINST UNFAIR 
COMPETITION AND FOR OTHER MATTERS CONNEC TED 
THEREWITH OR  INCIDENTAL THERETO1 
 Commencement [1 September 2008 ]2 
1 Short title  
This Act may be cited as the Protection Against  Unfair Competition Ac t. 
2 Act binds the Crown  
This Act  binds the Crown.  
3 Interpretation  
In this Act, unless the context otherwise requires  — 
“appearance of a product ” includes the packaging, shape, colour or other 
non-functional characteristic features of the product in question;  
“business identifier other than a trademark or a trade name ” includes 
business symbols, emblems, logos an d slogans used by an enterprise to 
convey in the course of industrial or commercial activities, a certain identity 
with respect to the enterprise and the products produced or the services 
rendered by that enterprise;  Section  4  CAP. 17.11  Protection Against Unfair Competition Act  
 
 
Page  6 2020 Revised Edition  to    
 “court ” means the Supreme Court of Tong a; 
“dilution of goodwill or reputation ” means the lessening of the distinctive 
character or advertising value of a trademark, trade name or other business 
identifier, the appearance of a product or the presentation of products or 
services or of a celebrity  or well -known fictional character;  
“enterprise ” includes any business venture, undertaking, project or initiative 
undertaken by any person or body corporate;  
“industrial or commercial activities ” means activities of enterprises 
providing products or serv ices, and buying and selling products or services 
including the activities of professionals and other such persons;  
“practice ” includes behaviour that consists of an omission to act;  
“presentation of products or services ” includes advertising;  
“trade mark ” means marks relating to goods, marks relating to services and 
marks relating to both goods and services whether registered or not.  
4 General principles  
(1) In addition to the acts and practices referred to in sections 5 to 9 , any act or 
practice in the course of industrial or commercial activities that is contrary to 
honest commercial practices shall constitute an act of unfair competition.  
(2) Any person damaged or likely to be damaged by an act of unfair competition 
within t he meaning of this Act shall be entitled to the remedies obtainable 
under the law of Tonga.  
(3) This section and sections 5 to 9 shall apply independently of and in addition 
to, any legislative provisions protecting inventions, industrial designs, 
trademar ks, literary and artistic works and other intellectual property subject 
matter.  
5 Causing confusion with respect to another's enterprise  
(1) Any act or practice, in the course of industrial or commercial activities that 
causes, or is likely to cause confus ion with respect to another's enterprise 
including the products or services offered by such enterprise, shall constitute 
an act of unfair competition.  
(2) Confusion may be caused, inter alia, with respect to any of the following:  
(a) a trademark, whether r egistered or not;  
(b) a trade name;  
(c) a business identifier other than a trademark or trade  name;  
(d) the appearance of a product;  
(e) the presentation of products or services; or  Protection Against Unfair Competition Act    CAP. 17.11 Section  6 
 
 
to 2020 Revised Edition  Page  7 
   
 (f) a celebrity or a well -known fictional character.  
6 Damaging another's goodwill or reputation  
(1) Any act or practice, in the course of industrial or commercial activities, that 
damages, or is likely to damage, the goodwill or reputation of another's 
enterprise shall constitute an act of unfair competition, regardless of whet her 
such act or practice causes confusion.  
(2) Damaging another's goodwill or reputation may result, inter alia , from the 
dilution of the goodwill or reputation attached to any of the following  — 
(a) a trademark, whether registered or not;  
(b) a trade name ; 
(c) a business identifier other than a trademark or trade name;  
(d) the appearance of a product;  
(e) the presentation of products or services; or  
(f) a celebrity or a well -known fictional character.  
7 Misleading the public  
(1) Any act or practice, in the  course of industrial or commercial activities that 
misleads, or is likely to mislead, the public with respect to an enterprise or its 
activities, including the products or services offered by such enterprise, shall 
constitute an act of unfair competition.  
(2) An act or practice is likely to mislead if it involves the advertising or 
promotion, inter alia , of any of the following:  
(a) the manufacturing process of a product;  
(b) the suitability of a product or service for a particular purpose;  
(c) the quality  or quantity or other characteristics of products or services;  
(d) the geographical origin of products o r services;  
(e) the conditions on which products or services are offered or provided; or  
(f) the price of products or services or the manner in which th ey are 
calculated.  
8 Discrediting another's enterprise  
(1) Any false or unjustifiable allegation in the course of industrial or commercial 
activities that discredits, or is likely to discredit, another's enterprise including 
the products or services offere d by such enterprise, shall constitute an act of 
unfair competition.  Section  9  CAP. 17.11  Protection Against Unfair Competition Act  
 
 
Page  8 2020 Revised Edition  to    
 (2) A false or unjustifiable allegation is likely to discredit an enterprise if it 
involves the advertising or promotion, inter alia, of any of the following – 
(a) the manufacturing proce ss of a product;  
(b) the suitability of a product or service for a particular purpose;  
(c) the quality or quantity or other characteristics of products or services;  
(d) the geographical origin of products or services;  
(e) the conditions on which products or services are offered or provided;  
(f) the price of products or services or the manner in which it is calculated.  
9 Unfair competition in respect of secret information  
(1) Any act or practice, in the course of industrial or commercial activities, that 
results in the disclosure, acquisition or use of secret information without the 
consent of the person lawfully in control of that information (hereinafter 
referred to as “the rightful holder”) and in a manner contrary to honest 
commercial practices shall con stitute an act of unfair competition.  
(2) Disclosure, acquisition or use of secret information by others without the 
consent of the rightful holder may, inter alia, result from — 
(a) industrial or commercial espionage;  
(b) breach of contract;  
(c) breach of  confidence;  
(d) inducement to commit any of the acts referred to in paragraphs (a) to 
(c); 
(e) acquisition of secret information by a third party who knew, or was 
grossly negligent in failing to know, that an act referred to in 
paragraphs (a) to (d) was i nvolved in the acquisition.  
(3) For the purposes of this section, information shall be considered secret 
information if  — 
(a) it is not, as a body or in the precise configuration and assembly of its 
components, generally known among or readily accessible t o persons 
within the circles that normally deal with the kind of information in 
question;  
(b) it has commercial value because it is secret; and  
(c) the rightful holder has taken reasonable steps to keep it secret.  
(4) Any act or practice in the course of i ndustrial or commercial activities shall be 
deemed to be an act of unfair competition if it consists or results in the unfair 
commercial use or disclosure of secret tests or other data relating to 
pharmaceutical or agricultural chemical products utilising new chemical 
substances and which have been submitted to a competent authority for 
marketing approval.  Protection Against Unfair Competition Act    CAP. 17.11 Section  9 
 
 
to 2020 Revised Edition  Page  9 
   
 Provided that disclosure shall be authorised  — 
(a) where necessary to protect the public; or  
(b) where steps are taken to ensure that the data are protec ted against unfair 
commercial use.  
(5) Subsection (4) shall not preclude a person other than the person who 
submitted the secret test or other data from relying on such test data in support 
of an application for product approval, after the expiration of a reasonable 
period of time from the date of submission of these tests or data for marketing 
approval.  
(6) The period of time under subsection (5) shall be determined by the court, 
upon application, taking into account the nature of the tests or data and the  
effort and expenditure involved but shall not, except in exceptional 
circumstances, be less than 5 years.  
    CAP. 17.11  Protection Against Unfair Competition Act  
 
 
Page  10 2020 Revised Edition  to    
  
                                                      
ENDNOTES  
1 Act 19 of 2002  
2 By GS 36/2008