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1. Action Against Unfair Commercial Practices (Directive 2005/29/EC)
This directive establishes a general prohibition against all commercial practices that:
are misleading, particularly regarding the origin, manufacturer, brand, or nature of a product;
result in an unfair advantage, for example, by imitating the appearance of well-known products;
give consumers the false impression that the imitation is associated with the original manufacturer.
It is particularly applicable where the copied product is a consumer good and the practice is likely to influence the purchasing decision.
Key judgment: In Konsumentenombudsmannen v. Ving Sverige AB (C-122/10), the CJEU confirmed that the directive has direct effect, meaning it can be invoked in disputes between private parties.
—
2. Action Against Unfair Competition (General Clause)
EU law does not comprehensively regulate unfair competition but requires Member States to ensure the proper functioning of the internal market. National laws (e.g., the Hungarian Competition Act – Tpvt.) must be consistent with the EU’s principles of market integrity and neutrality.
The CJEU has acknowledged in several cases that copying the appearance of a product may be unlawful if:
it is misleading, or
it unfairly exploits the market reputation of the original product,
it creates a risk of confusion for the consumer.
—
3. Protection of Trade Dress – EU Trademark Law (Regulation 2017/1001/EU)
The EU Trademark Regulation allows the registration of the overall appearance of a product (color, shape, packaging) as a trademark if it:
has distinctive character, or
has acquired secondary meaning in the marketplace (i.e., consumers associate the appearance with a particular producer).
Trademark infringement may occur even if the original product does not have 3D trademark protection, provided that the imitation is confusingly similar to consumers.
—
4. Copyright Protection as a “Work” – Based on the Cofemel Case
In Cofemel v. G-Star Raw (C-683/17), the CJEU held that copyright protection may apply to a product if:
it qualifies as an original intellectual creation, and
its form is not solely dictated by its function.
As a result, design items, furniture, luxury goods, and even packaging may enjoy copyright protection – even without registration.
—
5. Protection of Commercial Identity – Reputation-Based Protection
Copying the appearance of well-known products (e.g., Coca-Cola bottle, Toblerone shape) may constitute not only trademark infringement but also unlawful exploitation of reputation and market disruption – which may be actionable under both EU competition law and consumer protection law.
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Legal Comparison Table
| Legal Basis | Applicability | Advantage |
| Directive 2005/29/EC (misleading practices)) | Consumer product imitations | Fast procedure, applicable without IP protection |
| Trademark Regulation (2017/1001/EU | Distinctive shapes and forms | Long-term, strong and harmonized EU-wide protection |
| CJEU Case Law (Cofemel, Louboutin, etc. | Original design objects | Directly invocable, harmonized EU-level interpretation |
| National competition law (Tpvt., UWG, etc.) | Market protection considerations | Flexible, tailored to individual cases, under national control |
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Conclusion: Legal Protection Exists Even Without Registered IP Rights
At the EU level, multiple alternative legal remedies are available when no industrial property right (e.g., design or trademark registration) exists.
—
Katona és Társai Ügyvédi Társulás
(Katona & Partner Rechtsanwaltssozietät / Attorneys’ Association)
H-1106 Budapest, Tündérfürt utca 4.
Tel.: +36 1 225 25 30
Mobil: + 36 70 344 0388
Fax: +36 1 700 27 57
Legal Action Against Product Imitation under EU Law
—
1. Action Against Unfair Commercial Practices (Directive 2005/29/EC)
This directive establishes a general prohibition against all commercial practices that:
are misleading, particularly regarding the origin, manufacturer, brand, or nature of a product;
result in an unfair advantage, for example, by imitating the appearance of well-known products;
give consumers the false impression that the imitation is associated with the original manufacturer.
It is particularly applicable where the copied product is a consumer good and the practice is likely to influence the purchasing decision.
Key judgment: In Konsumentenombudsmannen v. Ving Sverige AB (C-122/10), the CJEU confirmed that the directive has direct effect, meaning it can be invoked in disputes between private parties.
—
2. Action Against Unfair Competition (General Clause)
EU law does not comprehensively regulate unfair competition but requires Member States to ensure the proper functioning of the internal market. National laws (e.g., the Hungarian Competition Act – Tpvt.) must be consistent with the EU’s principles of market integrity and neutrality.
The CJEU has acknowledged in several cases that copying the appearance of a product may be unlawful if:
it is misleading, or
it unfairly exploits the market reputation of the original product,
it creates a risk of confusion for the consumer.
—
3. Protection of Trade Dress – EU Trademark Law (Regulation 2017/1001/EU)
The EU Trademark Regulation allows the registration of the overall appearance of a product (color, shape, packaging) as a trademark if it:
has distinctive character, or
has acquired secondary meaning in the marketplace (i.e., consumers associate the appearance with a particular producer).
Trademark infringement may occur even if the original product does not have 3D trademark protection, provided that the imitation is confusingly similar to consumers.
—
4. Copyright Protection as a “Work” – Based on the Cofemel Case
In Cofemel v. G-Star Raw (C-683/17), the CJEU held that copyright protection may apply to a product if:
it qualifies as an original intellectual creation, and
its form is not solely dictated by its function.
As a result, design items, furniture, luxury goods, and even packaging may enjoy copyright protection – even without registration.
—
5. Protection of Commercial Identity – Reputation-Based Protection
Copying the appearance of well-known products (e.g., Coca-Cola bottle, Toblerone shape) may constitute not only trademark infringement but also unlawful exploitation of reputation and market disruption – which may be actionable under both EU competition law and consumer protection law.
—
Legal Comparison Table
| Legal Basis | Applicability | Advantage |
| Directive 2005/29/EC (misleading practices)) | Consumer product imitations | Fast procedure, applicable without IP protection |
| Trademark Regulation (2017/1001/EU | Distinctive shapes and forms | Long-term, strong and harmonized EU-wide protection |
| CJEU Case Law (Cofemel, Louboutin, etc. | Original design objects | Directly invocable, harmonized EU-level interpretation |
| National competition law (Tpvt., UWG, etc.) | Market protection considerations | Flexible, tailored to individual cases, under national control |
—
Conclusion: Legal Protection Exists Even Without Registered IP Rights
At the EU level, multiple alternative legal remedies are available when no industrial property right (e.g., design or trademark registration) exists.
—
Katona és Társai Ügyvédi Társulás
(Katona & Partner Rechtsanwaltssozietät / Attorneys’ Association)
H-1106 Budapest, Tündérfürt utca 4.
Tel.: +36 1 225 25 30
Mobil: + 36 70 344 0388
Fax: +36 1 700 27 57