What acts of unfair competition are imitation?

unfair competition













Although imitation product or business initiatives is part of the principle of free enterprise, considered unfair competition under certain circumstances.


Its regulation is established in Article 11 LCD, worded by Act 29/2009:

Article 11 Acts of imitation

  1. Imitation performance and business initiatives or professional outside is free, unless they are covered by an exclusive right recognized by law.
  2. However, imitation benefit of a third party deemed unfair when it is suitable for generating the association by consumers regarding the provision or involves unfair advantage of the reputation or the efforts of others.

The inevitability of the risks indicated association or use of another's reputation excludes disloyalty practice.

  1. Also, will be considered unfair systematic imitation of benefits and entrepreneurship or a professional competitor when such a strategy is found directly aimed at preventing or impeding their view on the market and exceed what, under the circumstances, can be regarded a natural market response.

The article "a lime and sand": begins by saying that imitation is free, but then shuts out the same if you can generate a consumer association or it may be a misappropriation of the alien.

The free enterprise, within the framework of the market economy is collected directly into the Spanish Constitution in its Article 38.

It is considered that there is a imitation "constructive" allowing progress, when a point is added for improvement in the performance. However, the Unfair Competition Law punishes inefficient imitation, that does not contribute to the progress or even confuse the consumer or exploits the reputation or the efforts of others.

As these terms are far from clear, must stay with an idea: the courts' interpretation of Article 11 has very restrictive, and only in very flagrant cases with plenty of solid evidence and you can get a judgment by (Véase SAP Navarre 17 October 2007).

Namely, the basic principle is freedom of enterprise, although the following exceptions are raised:

1.- Protected by a right of exclusive benefits

This exclusive right must have a legal recognition: relates primarily to the rights of intellectual property (copyright, brands, patents and industrial designs). Once this right expires, imitation is allowed. But the law expired, the possibility of incurring the cases of art. 11.2 LCD, to be discussed later.

Common features of these acts, actions must be in the competitive market environment. But also, the imitated product must have a certain "competitive merit": must have some distinguishing features that give a certain uniqueness and originality. Also must have a sufficient market penetration and to be condemned, must be possible to avoid this behavior: If the differentiators enter impair the function of the product, inevitably incur a certain imitation is not considered unfair competition.

2.- Likelihood of association or confusing consumers

Intended prevent consumers confuse the origin of the product. Not required but actually producing confusion is sufficient that the conduct is capable of doing. And in assessing the risk we run into "quicksand": jurisprudence is far from peaceful.

3.- Use of another's reputation

To consider what is unfair imitation in this course, must be a "usurper conduct" made with "profit motive" and must be unavoidable.

4.- Harnessing the efforts of others

This case concerns the "imitation reproduction", reproducing the original product at low cost: It copies the product outside, making it difficult for the innovator to recover its investment. But interpretation is restrictive. It also requires:

a) The employer "imitated" has actually incurred costs to launch the product and that has imitator in turn saved significant costs.

b) Whether it be a mere copy in which you have not contributed anything.

5.- Imitation systematic

This is the case of companies trying to harm or hinder a competitor, products imitating it repeatedly: Mimic all or most of the new products, initiatives, or marketing strategies of a competitor.

It should take into account the Competitor size: It is considered that the imitating firm must be greater than the imitated. If firms of similar size, or imitating is small compared to the large, case law tends to rule out disloyalty.

If you think your company is the victim of an act of imitation, note that arrivals to prosecution, court made a restrictive Vocal Performance.

Consult your case by clicking here.

Leave a Reply


Set as default language
 Edit Translation

Subscribe to receive a book PDF

Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter

Subscribe me

* This field is required