Slavish imitation

What is slavish imitation?

Unlawful slavish imitation may arise where there is a risk that the public will confuse the two products and the imitating party has failed to do everything that could reasonably be expected to avoid a likelihood of confusion, without impairing the quality and usefulness of the product.

There must be no avoidable confusion between two products

In determining whether there is a likelihood of direct or indirect confusion, consideration is given to the effect of the similarity on the purchasing decision of the actual or potential buyer. The overall impressions created by the products are relevant, as is how a relatively inattentive purchasing public, which will usually not see the two products side by side, is likely to perceive each product.

A distinctive position in the market is important in preventing slavish imitation

An important factor taken into account by the court is the overall impression created by similar products already on the market, sometimes referred to as the ‘Umfeld’. A likelihood of confusion can arise only if the imitated product has a ‘distinctive position’ in the relevant market. In other words, the appearance of the imitated product must distinguish it from that of other similar products on the market. 

A product may initially have a distinctive position in the market but gradually lose it as similar products enter the market. To preserve that distinctive position, you as a business owner must therefore take sufficient steps to keep imitations off the market. If you fail to do so, you may lose the ability to rely successfully on the doctrine of slavish imitation.