Slavish imitation

What is slavish imitation?

Not every design or product qualifies for protection under copyright, design rights, or trademark rights. In such cases, the doctrine of slave imitation can provide relief. This is a safety net within civil law (tort) for designs that are indeed unique but do not fall under formal intellectual property rights.

When is there slave imitation?

Slave imitation is not automatically unlawful. However, it can be considered unlawful under certain conditions:

• Confusion risk: there must be (already existing or anticipated) confusion among the public between the original and the imitated product;
• Unnecessary similarity: the imitating party had reasonable alternatives to distinguish itself, without compromising the usability or functionality of the product.

It is important that the original product has its own identity in the market: it must be clearly distinguishable in appearance from other similar products.

In which sectors does it occur?

Slave imitation is particularly prevalent in creative and visually driven sectors, such as:

• Fashion: clothing, shoes, jewelry, and accessories;
• Design: furniture, home decor, and other designed utility items.

How can you act?

If slave imitation occurs, you can take action. We often start with a formal demand or consultation with the other party to reach an adjustment or stop the product. If this is ineffective, a civil procedure can be initiated to prohibit the imitation or to claim damages.

Need help?

Do you think your product is being unlawfully imitated? Or are you being addressed regarding an alleged infringement? The specialists at BG.legal are ready to provide advice and assistance. Contact us for an assessment of your case.