The manufacturer of a product and their exclusive distribution partner do not require registered industrial property rights in order to protect the product against imitations. In Germany, the legal system also grants a product protection against imitation even if it is not protected by copyright, or by a registered design, trademark, utility model or patent.
1. Significance of protection against imitation under competition law
Even in cases where a product (but not an intangible product idea) is protected neither as a registered design, nor as a work in the copyright sense, nor as a three-dimensional trademark, nor as a utility model or patent, the product may nevertheless be protected against imitations. The legal basis is the German Act against Unfair Competition, which protects the product against imitations if such are capable of generating in the purchaser an incorrect notion as to the origin of the product and if the imitator had reasonable opportunities to avoid such an error. This protection against imitation by Unfair Competition Law also takes effect if the imitation exploits the repute of the product or is capable of impairing the repute of the original.
The protection against imitation under Unfair Competition Law has considerable signi-ficance and can look back on decades of tradition in German legal practice.
Its effectiveness is easily comparable with that of registered intellectual property rights. In particular, this protection against imitation is a possibility:
- if the manufacturer has failed to file their product as a registered design in good time,
- if the product is not sufficiently original in order to establish copyright protection, which requires a relatively high degree of originality in utilitarian objects,
- if the protection of a product as a 3-D or other trademark in the shape of the product has been denied or is impossible, or
- if the imitation circumvents the patent claim that covers the product.
In all these cases, protection against imitation by Unfair Competition Law can take effect, granting a scope of protection that can, in the final analysis, be equivalent to that of a registered design, a copyrighted work, or a product shape trademark.
Protection against imitation by Unfair Competition Law is by no means subsidiary to these special IP rights, but instead exists alongside them. In particular, protection against imitation by Unfair Competition Law can exist even if the short period of protection of an unregistered Community design has expired, and if the term of protection of a registered right has expired. Upon expiry of the protective period of these special rights, imitation protection does not necessarily end, but can continue under competition law.
2. Preconditions for protection against imitation under Unfair Competition Law
The judicial practice of the German Appeal Courts and the Federal Supreme Court has been highly differentiated for decades on the individual preconditions for protection against imitation under competition law. In most cases of dishonest imitation, this judicial practice allows a generally reliable assessment of the prospects of success.
