{"id":102718,"date":"2026-04-28T09:21:06","date_gmt":"2026-04-28T08:21:06","guid":{"rendered":"https:\/\/www.ictrechtswijzer.be\/?p=102718"},"modified":"2026-04-28T10:16:45","modified_gmt":"2026-04-28T09:16:45","slug":"slavish-imitation-without-trademarks-or-copyright","status":"publish","type":"post","link":"http:\/\/www.ictrechtswijzer.be\/en\/slaafse-nabootsing-zonder-merken-of-auteursrecht\/","title":{"rendered":"What to do when a competitor slavishly copies your product but your trademark and copyright fail?"},"content":{"rendered":"

When a competitor markets a cheap copy of your product, the first reflex is usually to invoke trademark rights<\/a> or copyright<\/a>. But what if your marks are not registered for the specific infringing goods, you do not meet the strict copyright originality test, or the opposing party is nimble enough to legally circumvent the infringement? A ruling of the Brussels Court of Appeal of March 9, 2026 (2023\/AR\/706) shows that market practice law (art. VI.104 Code of Economic Law (CEL)<\/a> and Article 10bis Paris Convention) then provides a valuable safety net: if there are sufficient \u201cattendant circumstances\u201d - systematic copying behavior, confounding and parasitism - a cease-and-desist order can be obtained even without a successful IP claim.<\/p>\n\n\n\n

The facts: a skin treatment device and its cheaper copy<\/h2>\n\n\n\n

Pollogen Ltd. an Israeli manufacturer, has been marketing the device \u201cGeneo\u201d (previously \u201cGeneo+\u201d) for medically non-invasive skin treatments since 2013, along with associated consumables under the brands POLLOGEN, GENEO, OXYGENEO, TRIPOLLAR and CAPSUGEN, among others. The device sells for about 10,000 euros each and is aimed at professional beauty and health centers. Distribution in the Benelux is through Hebea Professional BV.<\/p>\n\n\n\n

\"\"<\/a><\/figure>\n\n\n\n

In late 2019, Pollogen found that LA Poppe BV offered through its web shop a device under the name \u201cOxygen+\u201d that was externally and functionally quasi-identical to the Geneo device. Test purchases revealed that the device was manufactured in China, that the user interface contained references to \u201cOxyGeneo\u201d and \u201cTripollar,\u201d and that self-adhesive stickers on consumables concealed the characters \u201cPOLOGEN\u201d (with a single \u201cL\u201d) and \u201cCAQSUGEN\u201d (with \u201cQ\u201d instead of \u201cP\u201d). WhatsApp correspondence with the Chinese supplier revealed that LA Poppe had deliberately ordered a copy of the Geneo device, with minimal personalization, in order to market it as a low-cost alternative.<\/p>\n\n\n\n

\"\"<\/a><\/figure>\n\n\n\n

After a descriptive seizure regarding counterfeiting<\/a> (January 2022) Pollogen initiated proceedings before the president of the Dutch-speaking enterprise court of Brussels, in summary proceedings. The first judge largely dismissed the main claims. Pollogen filed an appeal.<\/p>\n\n\n\n

Appeal court decision<\/h2>\n\n\n\n

The court applies a layered analysis and deals successively with each legal basis.<\/p>\n\n\n\n

Trademark law: largely rejected<\/h3>\n\n\n\n

The court upheld the declaration of invalidity of the Union trademark TRIPOLLAR for descriptive character (Art. 7(1) b and c Union Trademark Regulation (Regulation (EU) 2017\/1001, hereinafter \u201cUMVO\u201d<\/a>): the relevant audience (aesthetic doctors, beauticians) will understand \u201ctripollar\u201d as a transliteration of the English term \u201ctripolar\u201d, referring to tripolar radiofrequency.<\/p>\n\n\n\n

In contrast, the court reformed the invalidation of OXYGENEO. Unlike the first judge, the court held that the relevant public will not perceive this sign as a contraction of \u201coxygen\u201d and the Greek \u201cneos,\u201d but as a neologism consisting of \u201cOxygen\u201d + the meaningless suffix \u201ceo.\u201d The minimal distinctiveness suffices.<\/p>\n\n\n\n

Nevertheless, the court dismissed all trademark infringement claims:<\/p>\n\n\n\n