The Freedom of Imitation and Its Limits - A European Perspective

Abstract

Many jurisdictions subscribe to the principle that the imitation of products unprotected by intellectual property should be free. On the other hand there is a widespread intuition among judges and lawyers that “reaping without sowing” is unfair. Hence courts in many jurisdictions have a tendency to pay rhetorical tribute to the freedom of imitation while nevertheless granting protection based on notions of consumer deception or misappropriation of image. This article will explore the legal situation in Europe, starting from European Community law. Three categories will be analysed: (1) imitation which causes confusion, (2) imitation which takes unfair advantage of another trader’s reputation and (3) “slavish imitation” without additional factors of unfairness.

Keywords: unfair competition, misappropriation, reaping without sowing, product imitation, European law

JEL Classification: K 13