Slave-like Imitation

Simply copying or slavishly imitating

Slave-like imitation can best be explained as the unauthorised and unnecessary (“too slavish”) imitation of another person’s product or service. This is not about an IP law (law on intellectual property), but about a simple unlawful act from the Civil Code. Among lawyers, it is called a “residual right” in relation to IP laws. That may sound meagre, but the doctrine is successfully applied in practice.

Competition should not be too similar. This may sound “grey”, but unfortunately, practice is not black and white. Slave-like imitation often relates to the external aspects of a product offered and at the moment of perception by the buyer, while no IP law applies.

In addition to pure innovation, a large number of companies continue to build on existing product forms and product names. The question here is not only whether it can be done differently (which is almost always possible), but whether it should be done differently (and therefore not too closely resemble the other).

What factors determine whether a product has been copied “too slavishly”?

Whether a product has been copied “too slavishly” depends on three important factors: the original product’s own identity, the possibility of variation in the copy, and the degree of confusion among the public. Does your product have a recognisable and distinctive appearance that is not technically necessary? And does a competitor choose to copy that appearance almost exactly without any need to do so? Then this may constitute slavish imitation. The likelihood of infringement is particularly high if customers believe that both products come from the same supplier. Slave imitation is therefore not a matter of exact copying, but of unnecessary similarity. If in doubt, always seek legal advice.

What distinguishes slavish imitation from legitimate competition?

Slavish imitation only becomes unlawful if a competitor imitates a product in such a way that it causes unnecessary confusion among the public, while there was sufficient scope to design it differently. In legitimate competition, you can of course respond to successful market models — as long as you maintain sufficient distance in terms of design or appearance. So it is not about imitation per se, but about appearing unnecessary. Does your product have its own identity and has someone else chosen to copy it almost identically for no functional reason? Then competition turns into unlawful behaviour. The line is drawn at confusion that could have been prevented.

An example

You did not register a “design right” for your model, or its term of protection has expired, and invoking copyright would fail because it was not sufficiently original. Are you then without rights if someone else copies your product almost entirely? What can you do? The slavish imitation case law may offer a solution. So ask for advice. The practice is not black and white; email us at [email protected] or contact us without obligation on +31(0)20 52 101 30.

Multiple areas of law come together

Slave imitation can be combined with misleading communication or comparative advertising: both concepts are clearly defined in the Civil Code; see the section on advertising law elsewhere on our site. In legal cases concerning slavish imitation in design, the Copyright Act often plays a role, in addition to aspects of the Designs Act (Benelux design and EU design). We are familiar with the criteria and can guide you through this sometimes difficult legal landscape. A claim of slavish imitation cannot be extended to technology where patent law applies and non-functional design is irrelevant.

What solutions are possible in a dispute about slavish imitation?

A dispute about slavish imitation revolves around the confusion that arises when a product unnecessarily resembles that of a competitor. Is that confusion demonstrable and was there room for a different design? If so, the aggrieved party can take various steps. This often starts with a letter of demand demanding that the imitation cease. If no action is taken, a court can be asked to issue an injunction against further sales, award damages or even order a product recall. Please note: this is not a matter of copying a protected right, but of unfair competition. So make sure you can substantiate that your product is distinctive and that confusion is being created. That is the key to success in these cases.

Imitation or counterfeit?

Seek advice on slavish imitation in order to assess the claim of “counterfeit” or “imitation”. Even if the advice is negative, negotiation with the other party can be a good solution. This means, for example, that the product does not have to be immediately withdrawn from the market in exchange for payment. This outcome can sometimes be better for both parties (the risks are contained) than just a “clash” in summary proceedings.