Slavish imitation

What is slavish imitation?

Does a product, idea or other design not qualify for protection under intellectual property law? Then a appeal for slavish imitation comes into play. Slavish imitation is, as it were, the safety net for all designs that are not protected by any other right. It is a form of tort.

Is it possible to invoke slavish imitation?

The starting point is that slavish imitation is permitted. But this principle is regularly deviated from.

To be able to invoke slavish imitation, you have to prove a number of things. An advantage is that it is not necessary to prove that a product or design has been copied one-on-one. Slavish imitation protects against all designs that are too similar. In concrete terms, you will have to argue that:

• The imitated product causes confusion among the public. If a specific example of sown confusion can be presented, it is absolutely helpful. For example, customers confusing the products with each other. This is proof that confusion has already occurred, but a well-founded fear that confusion may occur in the future is also sufficient.
• Secondly, it must be substantiated that the imitating party did not do enough to prevent the risk of confusion. This party should have taken measures. For example, by deviating from the original design in certain respects, so that similarity between the products is prevented as much as possible. This concerns the reasonable measures that could have been taken. Measures that, for example, affect the usability of a product do not have to be taken.

When these points are raised, a design is slavishly imitated.

Action

A product is unlawfully imitated. And now? You can take action against this. There are many examples in case law of proceedings on the question of whether products are slavishly imitated. But not everyone is waiting for legal proceedings.

Therefore, we usually start by writing to the party that slavishly imitates a product. During a consultation between the parties, we can examine whether the imitated product can be adjusted on certain crucial points, for example, to remove the similarity. Only if the consultations seem to have no effect can a procedure be considered.

Branches

Slavish imitation is common in the following industries:

• Fashion: jewelry, clothing, shoes and/or accessories;
• Design: furniture, including protection of a certain style.

Read more about various protection possibilities in the Fashion & Design branche.

Do you have questions about slavish imitation? Would you like to test whether your product or design is slavishly imitated? Please contact one of our lawyers.

Mustafa Kahya