At a glance
- Copying is generally free
- Unfair with deception as to origin, exploitation, breach of trust
- Better: register a design or mark
Copying a product that is not protected by a patent, trade mark, design or copyright is generally allowed. The UWG protects only against imitations accompanied by unfair circumstances – known as supplementary protection under unfair competition law.
Requirements
- Competitive distinctiveness of the original: its design or features must be capable of indicating commercial origin or special qualities. Everyday products and purely technical features are excluded; market recognition increases distinctiveness.
- Imitation: identical, almost identical or derivative copying. The closer the copy, the lower the requirements for the other elements.
- Unfair circumstances under Section 4 no. 3 UWG – one of the following:
- avoidable deception as to commercial origin
- unreasonable exploitation or impairment of the reputation of the original
- dishonest acquisition of the knowledge or documents required for the imitation, e.g. through breach of trust by a former licensee or employee
Claims
Injunction, information, destruction and damages under the threefold calculation (actual loss, reasonable royalty or account of profits). Protection is not time-limited but depends on continued distinctiveness; for fashion, usually one season. As a rule, only the manufacturer is entitled to claim.
Our advice: registered rights first
Supplementary protection is a safety net with evidentiary risks. Consider design registration (up to 25 years; unregistered Community design for three years from disclosure), shape marks and technical protection – and a customs application against imports, which requires registered rights.
