Slavish imitation

Latching on or slavish imitation
Slavish imitation is best explained as the unauthorised and unnecessary (“too slavishy”) imitating someone else’s product or service. This is not about intellectual property (IP) law, but it concerns an ordinary unlawful act under the Dutch Civil Code. Among lawyers it is known as “residual right” in respect of the IP laws. It sounds thin, but the doctrine is being used successfully in practice.

Competition should not resemble each other too much. This sounds like a “grey” area, but reality is not black and white. Slavish imitation often refers to aspects of appearance of an offered product and particularly at the moment of perception by the buyer, while no IP law applies.

In addition to pure innovation, many businesses build on existing product forms and product names. It is not just about whether things can be done differently (nearly always possible) but whether things should be done differently (and therefore not being too close to the other party).

An example: you did not register a design right for your design or the duration of protection has expired and invoking copyright would be unsuccessful because it was insufficiently original. In that case, are you without rights when someone else copies your product almost entirely? What else can you do? The case law on slavish imitation may then provide a solution. Ask for advice, therefore. In practice things are not always black and white; send us an email on info@flib.nl or contact us, without obligation, on +31 (0) 205 210 130.

Slavish imitation may be combined with misleading communication or comparative advertising: both terms are clearly defined in the Dutch Civil Code; see the section on Advertising Law on this site. In legal proceedings relating to slavish imitation of design, the Copyright Act often plays a role as well, in addition to aspects of the design and drawing legislation (Benelux design and EU design). We know the criteria and guide you through this sometimes very difficult legal landscape. Invoking slavish imitation cannot be extended to technology to which patent law lends itself and where non-functional design is not relevant.

Seek advice on slavish imitation to assess the claim relating to “counterfeit” or “imitation”. Even if an opinion is negative, negotiation with your other party may be a good solution. For example, so that there is no need to have the product immediately withdrawn from the market for a fee. This outcome may be better for both parties (the risks have been contained) than a clash in interlocutory proceedings.