There are many ways of protecting your intellectual property. In the case of a technical invention you can apply for a patent. Creative pieces can be protected by copyright or design right and keeping your invention secret may also be an interesting option.
In some situations no form of protection at all will be available. That could be because the invention is not novel and inventive.
Does this mean that a competitor can simply copy your product and bring it onto the market in the Netherlands if no form of protection is available, or after the period of protection has come to an end?
The answer to this question is ‘not necessarily’ and that is down to the slavish imitation principle.
Appearance
Under certain circumstances you can prohibit imitation of your product if the maker of the imitation could have made different design choices without this affecting the product's (technical) operation or reliability.
This means that different features which, for example, are only relevant for the design of the product and for which there are possible alternatives, cannot simply be copied. 'Slavish imitation' in fact offers protection for the appearance of products and not so much their technical operation.
This is conditional on your product having its own position in the market and the imitative product being so similar that it could lead to confusion in the market with regard to its origin. Slavish imitation therefore offers protection against needless confusion.
It does not exclusively have to involve design features, it can also involve the copying of a (large) number of a product’s technical features, as long as the following conditions are met:
- The product that has its own, distinctive position on the market;
- There needs to be room to introduce differences without this being detrimental to the product;
- Risk of confusion in the market.
Slavish imitation is a form of a wrongful act and is essentially based on the idea that we do not want someone to sponge off someone else's distinctive product by making a virtually identical copy of this product. They should make their own product.
Example
Suppose: you are a bicycle manufacturer and, for twenty years, you had patent protection on the technical effect that disc-shaped bicycle wheels have on the aerodynamics of a bicycle. To help promote your wheels, you painted a spiral pattern on them. They immediately stood out on television, during the Tour de France.
When the patent came to an end everyone was allowed to produce closed wheels with the same technical advantages. However, thanks to the concept of slavish imitation you may still be able to stop your competitors from painting the spiral pattern on their wheels. After all this pattern does not have a technical function and does not play a role in the wheel's reliability.
As a consequence your 'spiral wheels' still have a protected position in the market. Please note: slavish imitation generally involves a combination of copied features, and not just one feature. The more features are copied, the greater the chance of confusion and the stronger your case.
Abroad
However, you need to be careful! The slavish imitation principle is based entirely on Dutch jurisdiction. If your product is copied abroad, a court in that country may have a different opinion to a Dutch one.
In addition slavish imitation is not regulated by law. You will therefore have to convince the court on the basis of case law. This can make things difficult at times. On top of that, free competition is a high priority in international trade and restricting it could be considered undesirable.
My advice is therefore: always try to protect your intellectual property by means of a defined right such as a patent or design right first. If that is not feasible, or your protection has expired, you could possibly fall back on slavish imitation.
