Slavish imitation

Imitation of products of market competitors is permissible as long as it does not create the potential to mislead customers as to the identity of the manufacturer or product. This premise is crucial in examining whether a specific behavior of a competitor constitutes an act of unfair competition, as defined in Art. 13 section 1 of the Act on Combating Unfair Competition. The Court of Appeal in Poznań was faced with this task in the case no. I AGa 135/22.

In the case in question, the plaintiff, producing and selling children’s toys, established cooperation with the defendants by commissioning them to sew fabric covers for its products. The plaintiff offered for sale, among others: foldable play mats for children.

During the above-mentioned cooperation, the defendants launched an online store where they started selling children’s products under a different brand. The range was very similar to that offered by the plaintiff, especially since the defendants sold a mat that was confusingly similar to the mat offered by the plaintiff.
The plaintiff realized that the defendants were conducting competitive activities when it turned out that the defendants were sewing tags with the telephone number of their online store into the fabric covers for products sold by the plaintiff, sewn at the request of the plaintiff. A similar situation also occurred in relation to another product offered by the plaintiff, the design of which was sent to the defendants in order to make fabric covers for this product, i.e. a sofa for children.

The court found it permissible for the defendants to offer play mats for sale due to the multitude of products of this type on the market. Therefore, in the justification he pointed to the lack of prohibition of imitation in the Polish legal system. He emphasized that in a situation where a given solution is not protected by an exclusive right, which the plaintiff did not invoke in the case in question, the general principle of freedom of copying and imitation applies. Only qualified imitation is prohibited when copying the external appearance of the product using technical means of reproduction creates the potential to mislead customers as to the identity of the manufacturer or product. Therefore, even slavish imitation, if it is not connected with the risk of misleading, does not justify protection under Art. 13 section 1 of the Act on Combating Unfair Competition, however, it cannot be completely ruled out that in situations justified by special circumstances, when the reprehensibility of the imitator’s behavior is obvious to knowledgeable economic participants, acts of imitation of someone else’s finished product which, although not misleading, should be considered unlawful. client, but are contrary to good customs. This is how the production of sofas by the defendants based on the design sent by the plaintiff was classified.

We must agree with the Court’s judgment. A prohibition on non-misleading imitation would drastically limit a market based on the principle of competition. Various sellers offering products with similar properties develops the market and the economy itself. However, the limit of such behavior is clearly outlined when such behavior creates the potential to mislead customers as to the identity of the manufacturer or product.