Look-alike imitation — unfair commercial practice or an expression of the freedom of competition?
Keywords:
intellectual property law, unfair competition, look-alike, likelihood of confusionAbstract
Look-alike or copycat products are products where distinctive features of a third product’s design are imitated in order to appeal to the branded product’s consumers. Depending on how extensively the original design is imitated, look-alike products may not consistently create a likelihood of confusion. Look-alike products may regardless cause a decline in sales of the branded product and may as well cause badwill and hence dilute the original product’s reputation. Meanwhile, look-alike products do also increase price competition to the advantage of the consumer.
This article analyzes whether look-alike products not creating a likelihood of confusion constitute an unfair commercial practice or whether these products solely expresses the of freedom of competition. The analysis is conducted in the light of the Finnish Unfair Business Practice Act 1061/1978 and related case law, as the main legal remedies available for imitations not causing a likelihood of confusion are regulated in the general clause of the Act. Additionally, by constructing a Nordic comparative perspective, the article analyzes whether the Finnish protection against look-alike products should be more efficient.
This article shows that the Finnish Market Court’s interpretation of the general clause in the Unfair Business Practice Act varies enormously. The article stresses that the Market Court’s interpretation must, due to the rule of law, be uniform. A uniform interpretation can be reached by adapting a different interpretation of the clause as well as by amending the clause itself. Further, as issues relating to the relations between undertakings, and thus look-alike products, have not been harmonized, a harmonization on EU level is recommended.
