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Slavish imitation (2013)

Patent rights, as with many other intellectual property rights, are valid for a
limited period of time. The idea behind this limitation in time is to strike the
right balance between the reward and incentive for investors on the one hand,
and the need for competition on the other. After the lapse of the patent, competitors
should be free to use the invention in any form. This application can
take the form of an exact copy of the most famous application of the patent by
the former patent owner himself. This should be permissible and is, in fact, the
whole idea behind the time limitation regarding validity of the patent.

However, especially with products which have been patented and have become
famous or even iconic, exact copying can be perceived as parasitic and/or confusing
to the public. Rights owners often try to prolong their monopoly with
successful products either through trademark law or through unfair competition
law. An attempt to prolong the protection of the three-headed shaver by
Philips is an example of the former. This contribution is largely dedicated to
the latter, namely protection against copying on the basis of unfair competitionof
famous products, for which the patent protection has lapsed.

 



Slavish imitation, freedom of competition and the Lego brick. In: Broek B. van den, Dack S., Eijsvogels F., Hirschfeld A. (Eds.) Willem Hoyng Litigator. Amsterdam: deLex, 2013. p.282-300.