What if one of your competitors has copied your product? Even if there is no IP right protecting your product, such copying can still be considered unlawful under certain circumstances. Such unlawful copying is also called slavish imitation. Slavish imitation is not an IP right, but an unlawful act according to Dutch tort law. As a basic principle, imitation is allowed. However, slavish imitation is considered unlawful.
The imitator is obliged to do everything that is reasonably possible and necessary, without impairing the reliability and usefulness of his product, to prevent confusion. If the imitator does not fulfill this requirement, for example by choosing a certain shape while he could have chosen for another shape, this can be unlawful.
How can I invoke slavish imitation?
Whether or not a likelihood of confusion can be established, is dependent on the similarity of the products concerned.
If you would like to invoke protection against slavish imitation, it is necessary that your own product has an own and individual position on the relevant market. This means that the product concerned should distinguish itself by its appearance from different but similar products on the market.
Furthermore, your product must be actively protected. The own position of your product can decline and even disappear when similar products appear on the relevant market. This requires an active protection of products against unlawful copying and counterfeiting.
By using the protection granted by slavish imitation you can prevent any third party to create a risk of confusion by slavishly imitating your product.
Our IP attorneys are experienced with regard to actions based on slavish imitation. We can advise and assist you in possible proceedings. Furthermore, we can advise you regarding possible protective measures against slavish imitation.