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When are Lookalikes Unfair in Europe? In Search of a Common EU Concept of Unfairness

The lookalike effect is a strategy based on shortcuts in market communication located at the intersection of intellectual property and market fairness protection. The example of lookalikes is used to investigate the perspectives of establishing common EU frames of market fairness in B2B perspective.

Last Update: 27.08.18

Crowded markets encourage shortcuts. The lookalike effect is an example of such marketing strategy based on competitors' visual communication tools which are applied by other market actors to attract consumers' attention in order to increase sales. As no unified unfair competition law exists in the EU, the only harmonized rules in Europe pertain to trade mark and design protection and market fairness principles in a B2C context. Directive 2005/29 on unfair commercial practices (UCPD) is quite explicit as regards lookalikes; the wording of its Recital 14 and an absolute ban set out in the Black list (Practice 13) reveal clear intention of the EU law maker to prohibit only misleading market practices i.e. those creating confusion with any product of a competitor. The concept of confusion applied to clarify the misleading nature of this market practice seems to be limited to certain effects only i.e. confusion as to the commercial origin of the product. Guidance on the UCPD blurs, however, this view stretching out this concept on deception over quality and nature. Consequently, the EU unified unfair trading law seems to be based on a concept of misleading practices which is in itself misleading and consequently prone to be twisted depending on the needs and context what results in uncertainty of market actors. Inconsistencies between the normative content of the UCPD and the Guidance should be eliminated in subsequent editions of the latter to avoid this adverse situation.

The analysis of national court decisions does not prove the explicit and unambiguous influence of the EU standard of unfairness in misleading imitation set out in the UCPD on the national standards of unfairness stipulated in the interest of competitors only (or mostly). Meanwhile, in the light of the TFEU and the present state of market and legal integration in the EU (including introduction of the instruments like unregistered Community design and fully harmonized standards of unfairness in the UCPD) the member states' freedom to regulate market fairness in B2B in a way departing from or disregarding the established unified principles is considerably limited. The state of advancement of European integration in this area should also be taken into account by the courts dealing with disputes relating to lookalikes in the interests of competitors only. The courts should not, by their decisions, contradict or undermine established rules of protection (e.g. by protecting those elements of visual communication which are not suitable for protection under trade mark or design law or which are already in the public domain due to the expiry of protection or which, from the point of view of consumers, constitute a legitimate marketing practice). Since the prospects on normative enactment of the EU standards of unfairness in B2B perspective are still small only such attitude may substantially contribute to establishing de facto common frames of market fairness in the EU.



Dr. Anna Tischner

Main Areas of Research

I.4 Fairness als Rechtsprinzip