slavish imitation

What we do

Slavish imitation occurs when the imitation can unnecessarily lead to confusion among the public. Imitation of items protected by, for example, design rights, does not fall under slavish imitation. Slavish imitation is a kind of residual category. When the imitation is not (or no longer) protected by an intellectual property right, other companies may in principle copy or reproduce it, unless it constitutes unlawful slavish imitation. If another party causes unnecessary confusion among the public with the copied products, damages may be claimed, among other things.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of slavish imitation. Contact us to discuss the possibilities.

What exactly is slavish imitation from a legal perspective?

Slavish imitation is not a separate intellectual property right, but a form of tort under Article 6:162 of the Dutch Civil Code. The principle is partly based on Article 10bis of the Paris Convention, which combats unfair competition. The starting point in the Netherlands is that imitating a product that is not (or no longer) protected by an IP right is permitted in principle: free competition takes precedence. Only when the imitation causes unnecessary confusion among the public is the boundary of the unlawful act crossed. Thus, slavish imitation functions as a safety net within intellectual property (IP law): it can offer protection where design law, copyright , or trademark law no longer provides any or any full protection.

The requirements: distinctiveness, risk of confusion, and avoidability

For a successful claim of slavish imitation, based on settled case law of the Supreme Court, three core requirements apply. First, the imitated product must have its own place in the market : it distinguishes itself in terms of its external appearance from other, similar products on the relevant market (the so-called “distinctive character” or distinctiveness). Second, there must be a likelihood of confusion among the public—which can be considered to be inattentive—and both direct confusion (people see no difference) and indirect confusion (people believe that the products originate from the same undertaking) count. Third, that confusion must avoidable : the imitator could have taken a different approach in the design without compromising the soundness and usability of the product, and failed to do everything reasonably possible and necessary to prevent confusion. The overall impression of both products is central to the assessment.

Important case law: from Hyster to All Round/Simstars

The doctrine of slavish imitation dates back to the Hyster Karry Krane judgment (Supreme Court 1953). In that case, the Supreme Court ruled that imitating a competitor's product is only unlawful if one could just as easily have taken a different path and, by failing to do so, creates confusion. In the landmark All Round/Simstars judgment (Supreme Court, May 19, 2017, ECLI:NL:HR:2017:938, known for the Mi Moneda jewelry), the Supreme Court clearly summarized the framework once again. Importantly, the “distinctive character” of a design can become diluted: as more similar products appear on the market, distinctiveness may diminish or even disappear. A claim of slavish imitation will then no longer succeed, even if the products bear a strong resemblance to one another. This underscores why actively enforcing your own position is so important.

What claims can you file?

If your product is slavishly imitated, various claims are available under tort law (Article 6:162 of the Dutch Civil Code). In practice, this often involves an injunction against further imitation (if necessary, subject to a penalty payment), compensation for damages suffered, disgorgement of profits , and a recall or destruction of the imitating products. Many cases begin with a cease and desist letter and, given the urgency, can be enforced through summary proceedings. Our lawyers and (corporate) legal experts assist in building evidence regarding your own identity and the risk of confusion – for example, through market research, comparative material, and purchase history – and in choosing the most effective route, whether you are an international group or the entrepreneur around the corner.

slavish imitation or an IP right after all?

Because slavish imitation acts as a safety net, it almost always pays to first investigate whether any “hard” IP rights are involved. A distinctive product shape may be protected under design law, a logo or name under trademark law or a trade name, and creative design under copyright. Technical inventions may fall under patent law and know-how under the protection of trade secrets. We assess which legal basis provides the strongest position and, where necessary, combine a claim based on an IP right with the defense of slavish imitation. A complete overview of our IP expertise can be found on the Intellectual Property (IP Law).

Frequently asked questions about slavish imitation

Am I allowed to simply copy a competitor's product? In principle, yes, as long as it is not protected by intellectual property rights and you do not cause unnecessary confusion. Give the product a sufficiently distinctive appearance and ensure that the public can see the difference. How long does protection against slavish imitation last? Unlike intellectual property rights, protection against slavish imitation does not have a fixed duration, but the protection can lapse if you do not take action against copies. Timely and consistent enforcement is therefore essential. What does a procedure cost? That depends on the route (injunction, summary proceedings, or main proceedings) and the complexity of the evidence. We discuss the approach and costs transparently in advance.