How are imitation products made

Product imitation

Reproducing successful products is tempting for many companies. However, care should always be taken not to be associated with product piracy or to violate competition law.It is advisable to consult an experienced lawyer in advance.

Product piracy is strictly prohibited

Of Piracy (engl. Counterfeiting) one always speaks when through a Product violates industrial property rights or intellectual property rights become. It's mostly about Trademark rights, Patent rights, Utility model or Registered patents or designs, which are usually entered in the respective register. This is a special case copyrightwhich is not a registration right, but arises through the creation of the work. The usually registered, i.e. registered, intangibleAssets allow the owner to exclusive use certain signs, technical processes or constructions. Anyone who violates this monopoly right can be sued by the owner. These Expectations are very extensive and range from that Prohibition of production and des Sales of counterfeit goods right through to that Or to request goods out these to be destroyed. Compensation can also be claimed. The injury of industrial property rights can also punishable be and with up to five years imprisonment be punished.

who innovative products offers should therefore try one Register industrial property right that protects it against plagiarism. Against should Supplier of imitation products pay special attention to not to violate any such rights. In both cases, it is advisable to clarify the situation with a lawyer from the outset. Otherwise there is one significant legal risk.

Commercial legal protection allows that Monopoly law but only on limited and manageable time. Exceptions only apply to that Trademark lawthat on unlimitedtime can be extended, and that copyright, the first 70 years after the author's death goes out. Different maximum protection periods apply to technical property rights, but these are at a maximum of 25 years lie. After that, other suppliers are also allowed to offer and produce the products. This system serves to balance the interests of the parties operating in the market. On the one hand there are rights to Protection of innovative companieswho should be given the opportunity to earn back their research and development costs. On the other hand, through the Limiting the protection time increased the competition and permanent monopolies are prevented.

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Imitation products are generally permitted

Imitation products or so-called "me-too products" are expressly intended by the legal system, unless intellectual property is contrary. From the case law of the Federal Court of Justice (BGH) therefore also results from the Principle of freedom from imitation. Product imitations have great economic potential, since fewer development costs are necessary and there may already be great demand. The Imitation products can do such a thing effective price competition that ultimately benefits the consumer. The temptation to recreate an innovative product that is no longer protected is therefore very great and in principle not objectionable from a legal point of view.

Imitation may be prohibited under competition law

Still are Imitationsnot always permissible. Even if the copycat products do not conflict with any proprietary rights concerns, the products can violate competition law.

The Law Against Unfair Competition (UWG) is one of the central laws of competition law. The Rules of the market Are defined. One of those rules of the game is that Protection against being misled. Unfair acts are those who mislead a market participant and thus possibly cause him to take an action which he would otherwise not have taken.

A Deception according to competition law, for example, if the offered or advertised goods a Likelihood of confusion with the products one Competitors evokes. This risk of confusion must be given special attention in the case of product imitations. If the imitators are concerned with creating and exploiting this mix-up, then such behavior is always inadmissible.

Especially on the Problem of imitation is tailored however Section 4 No. 3 UWG. According to this, whoever:

"Offers goods or services that are an imitation of a competitor's goods or services if he

a) causes avoidable deception of the customer about the operational origin,

b) inappropriately exploits or impairs or affects the esteem of the counterfeit goods or service

c)has dishonestly obtained the knowledge or documents required for the imitation; "

The background to this regulation is the will of the legislature that Innovations pay off intended so that new products and technological advances are available to consumers. It would be contrary to this if imitations were allowed without exception. This advancing one Innovation competition however, is only part of the market. On the other side is the chasing one Price competitionwho is dependent on imitations. The persecuting competition puts pressure on the innovative companies and thereby effectively lowers the prices for the consumers.

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The Protection against counterfeiting under fair trading law protects Performance results that are competitivePeculiarity have. The protection always intervenes when a Imitated product will that the competitive idiosyncrasy owns and also special Circumstances conduct as unfair appear.

Are therefore protected only products, so goods or services and Not about mere Ideas or concepts. Also need imitators and original suppliers Competitors be, but this will regularly be the case when the counterfeit product is offered.

Competitive character has a product when the addressed public, i.e. the customers, can assign the product to a manufacturer. The manufacturer does not have to be clearly known. Rather, it is sufficient that the Product differentiates itself from competing products. Certain features or the specific design of the product must lead to the individual character. This particular design can be of an aesthetic or technical nature, but it can also result from the common features of a product range or series. In the case of technical features, it should be noted that only such technical designs a competitive peculiarity can justify that technically not absolutely necessary are. A technical solution can therefore only create competitive characteristics if there are other technical alternatives. Otherwise an imitation product would already be technically impossible, this would run counter to the principle of freedom from imitation of the BGH.

A imitation must go with the Original productto match or this one be so similar that the original can be recognized in the imitation can be. A product imitation also requires that the imitated product was already known. This means that simultaneous second developments are not imitations. The imitations must exactly the characteristics take, which is the competitive nature justify, because exactly these characteristics Original product unmistakable do. Not what is required, however, is that the Productsinterchangeable are. Rather, it is sufficient if the original product can be found in the imitated product. For example, when an automobile manufacturer takes over the design of a rim from a rim manufacturer. Here the products, car on one side and rim on the other, are not interchangeable, but there is still an imitation.

Finally, in addition to imitating a product with a competitive character, a special circumstance that the unfairness of actionjustified. Because protected is through competition law Not the Intellectual property on the original products, but the manufacturer's right not to be exploited. In the legal text cited above there are some examples of what such circumstances can be. Dishonesty is for example one avoidable deception of origin, at Reputation exploitation or impairment before or when the Imitation only with dishonestly obtained information could be done.

An avoidable one Deception of origin is about when the consumer the Believes that product imitation is the original. Such a deception is unavoidable if the mix-up is caused by technically necessary details. However, the imitator has to do a lot to explain the origin of the company. This can mean, for example, that the products are marked with their own brand name or that the design is alienated as far as possible from the original product within the framework of what is technically possible. In this respect, it always depends on the specific design of the product imitation.

When products are successfully marketed in the market, they are assigned a certain value that goes beyond the mere value of the goods. This gives the product a certain appreciation and a good reputation. Imitation products that want to appeal to the same public may neither exploit nor impair this reputation. A product imitation is therefore allowed do not make a reference to the original products yourselfto get one Image transfer to create. But also the good one is allowed to do the same Reputation not affected be, so if for example by a The quality of the imitation is much worse and the appreciation of the original is reduced.

It goes without saying that a Product imitation then unfair is if they only made with information could be made by a Deception or otherwise inadmissible were obtained. Industrial espionage is certainly the most extreme form of information gathering here. But other types of behavior can also lead to a product not being allowed to be sold. It has to be checked in individual cases will be whether the Obtaining the information as inappropriate represents.

This legal list but it is not conclusive. And if the behavior is related to the Product imitation as a targeted handicap this can also be unfair according to § 4 No. 4 UWG.

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Legal consequences of unfair product imitation

When a Product imitation not permitted or is unfair, the Manufacturer of originalProduct take action against imitation. According to competition law, he is responsible Injunctive relief, a Elimination claim, a Claim for damages and, if applicable, a Claim to enrichment to.

The Injunctive relief refers thereby only on offering, so not on the manufacture or import of the imitations. Because in this regard, competition law is clear. Accordingly, the authorized manufacturer of the original can only prohibit the distribution of the imitations. The ban on distribution must be limited to actions that are actually to be regarded as unfair. If so just a specific sales channel causes a deception of origin is also allowed only this channel is prohibited become.

Nonetheless, the effectiveness of the Injunctive reliefnot underestimated become. Because if offering is completely prohibited, then it can Copycats massive damage arise from him Stores goods that he cannot sell and may.

In accordance with the provision for injunctive relief, the Elimination claim only for the dishonest acts. It can therefore be demanded that the imitator uses his products, as far as he can, calls back from the market. On the other hand, the original producer cannot demand that the products be destroyed or returned to him. However, such an approach is possible and common in other areas of industrial property protection and product piracy. However, the destruction cannot be demanded on the basis of competition law, since only the offering and not the production is prohibited.

If the Non-competition violationwillful or negligent took place, i.e. by the infringer indebted the injured person can damages desire. There is always intent when the injuring party was aware of the illegality of his actions. This will usually be difficult to prove in the case of first-time offenders. However, a liability for damages can also be triggered by negligent behavior. negligence is already there when it is in traffic disregarded the necessary care has been. This duty of care is very extensive in competition law. According to this, fault can always be assumed if behavior is recognizable in a gray area and the agent must at least expect that his behavior will be assessed as inadmissible by others. The excuse, you have did not knowthat the Injury to dishonest behavior have acted counts therefore Not.

If there is an obligation to pay compensation, the injured party can be called tripleDamage calculation serve. In other words, the injured person can choose whether to do the indeeddamage incurred, for example his lost profit, the Infringer profit or one fictitious license fee want to get replaced. The injured party can therefore demand the entire profit from the dishonest act. Or if this is higher, then he can also request a fictitious license. It is therefore up to the injured party how high the compensation is, so that here too there is a considerable economic risk for the providers of imitations.

Finally, there can also be no-fault Enrichment claims consist. This can be used, for example, to take action against dealers who did not know that they were selling imitations. Then the injured person can demand what the Merchant earned at the injured's expense Has.

The sanctions in counterfeit protection are often initially by means of a Warning enforced to be possible fast the omission to reach. After that, the difficult work-up to calculate the damage can take place. The Legal consequences seem very serious but are required in the fight against product piracy.

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How WBS can help you

Independent of industrial property rights and intellectual property can the Competition law one Product imitationstand in the way. However, in the opinion of the BGH, the Principle of freedom from imitation and from an economic point of view, "Me-Too Products“Extremely attractive and lucrative be.

With the Assisting a lawyers You can prevent your own product from falling under the heading of product piracy. The most important thing is that the Traffic is not misled about the operational origin of the product becomes.

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