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Acts of imitation in todays commerce

It is fundamental that all commercial operators have the right to competition to ensure that consumers are protected against any unfair business practices.

Within the current legal framework, both the Law on the Defence of Competition and the Law on Unfair Competition define a number of types of unfair behaviour that are prohibited for going against the market or against consumers themselves.

One of the most common practices is for a businessperson to take advantage of another persons reputation, fame or know-how, or that of their products or services, by imitating the product or service or the means of offering it on the market.

According to article 11 of Law 3/1991 on Unfair Competition, one is freely permitted to imitate business services or initiatives, unless they are protected by an exclusive right, normally an intellectual property right.

However, the second paragraph of this article establishes, in these exact words, that “the imitation of a third partys products or services shall be considered unfair when it is likely to lead to confusion by consumers with regard to the product or service or when it involves wrongful use of another persons reputation or efforts”.

An example of this situation is the sentence recently passed by the Supreme Court on 7 July 2009, in which an act of unfair competition was judged, where a businessman was marketing an electrical appliance that another person considered to be a slavish copy of the appliance that he himself manufactured and marketed.

The highest Spanish Court established that the principle of free imitability is not applicable because there is likelihood of confusion by consumers with regard to the conflicting products, i.e. the imitation is likely to lead to confusion between the imitating product and the original product, even though the offender included his own mark in the imitated product.

In this sentence, the Supreme Court considered that there was a likelihood of confusion by consumers with regard to the conflicting products, regardless of the fact that the word stamped on the juicer was different, i.e. the products were identical even though they were identified by two different marks.

It can be clearly seen from this Sentence that the principle of free imitability is limited, as the court notes that “the similarity is so obvious that the differences are limited, prima facie, to a slight variation in tonality and in the shape of the foot that supports the juicer, and given the similarities of shape and structure, its parts could even be interchanged. Although it is true that the mark is different, the essential defining elements are so similar that it is very difficult, on first sight, to differentiate them, making this the most important factor”.

Carmen Sánchez-Puelles