The Freedom of Imitation and Its Limits - A European Perspective

International Review of Intellectual Property and Competition Law, Vol. 41, pp. 506-524, 2010

17 Pages Posted: 23 Jan 2010 Last revised: 26 Aug 2010

See all articles by Ansgar Ohly

Ansgar Ohly

Ludwig Maximilian University Munich

Date Written: July 29, 2009

Abstract

Many jurisdictions subscribe to the principle that the imitation of products unprotected by intellectual property should be free. On the other hand there is a widespread intuition among judges and lawyers that “reaping without sowing” is unfair. Hence courts in many jurisdictions have a tendency to pay rhetorical tribute to the freedom of imitation while nevertheless granting protection based on notions of consumer deception or misappropriation of image. This article will explore the legal situation in Europe, starting from European Community law. Three categories will be analysed: (1) imitation which causes confusion, (2) imitation which takes unfair advantage of another trader’s reputation and (3) “slavish imitation” without additional factors of unfairness.

Keywords: unfair competition, misappropriation, reaping without sowing, product imitation, European law

JEL Classification: K 13

Suggested Citation

Ohly, Ansgar, The Freedom of Imitation and Its Limits - A European Perspective (July 29, 2009). International Review of Intellectual Property and Competition Law, Vol. 41, pp. 506-524, 2010, Available at SSRN: https://ssrn.com/abstract=1523290

Ansgar Ohly (Contact Author)

Ludwig Maximilian University Munich ( email )

Ludwigstrasse 29
Munich, Bavaria 80539
Germany

HOME PAGE: http://www.geistiges-eigentum.info

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