Can a competitor simply imitate your product or packaging? The limits of parasitic competion after the Capri Sun ruling

May a competitor imitate the design of your successful product if it is not protected by intellectual property rights ? Yes, as a rule it is allowed. The Capri Sun ruling of the Court of Cassation on March 2, 2026 confirms that merely copying a product in order to surf along on the success and goodwill of a competitor is not, in itself, an unfair market practice. Only when there are additional unlawful circumstances, such as direct confusing, can you take action against this form of so-called parasitic competition.

The facts and legal context

Capri Sun successfully markets fruit drinks worldwide, packaged in a very distinctive stand-up pouch with a straw. For years, this packaging enjoyed protection in the Benelux through a registered three-dimensional shape mark. When the private label manufacturers of supermarket chain Colruyt (through the Riha group) decided to offer fruit drinks in identically shaped stand-up pouches, Capri Sun wtook legal action to seek a court order to halt production.

During the course of these legal proceedings, however, Capri Sun's shape trademark was finally declared invalid. Judges in both the Netherlands and Belgium ruled that the specific shape of the pouch was purely functionally (technically) determined, thus excluding it from trademark protection.

In the absence of an intellectual property right, Capri Sun had to change tack. The company invoked the Belgian rules on unfair competition and market practices (Article VI.104 of the Code of Economic Law). Capri Sun argued that competitors were guilty of ‘parasitic competition’ or ‘image transfer’ by deliberately adopting the iconic form and thus unlawfully diverting the fame, reputation and goodwill expensively accumulated by Capri Sun to their own private label products.

The decision: right to copy prevails

The Brussels appeal court dismissed Capri Sun's claims in 2023. The court emphasized that in Belgium, freedom of enterprise and free competition take precedence. The mere copying of a form, even if it directly benefits the competitor, is not in itself an act of unfair competition. Because the competitor had made sufficient efforts of its own to distinguish the packaging in terms of print - by using a different house brand (‘Boni’), different colors (yellow instead of blue) and different drawings (monkeys and chameleons) - there was no question of likelihood of confusion or an unlawful hooking up.

The Court of Cassation confirmed this decision in its March 2, 2026 ruling. The Court clearly ruled that copying behavior, in which the fame and goodwill of the copied company are diverted to its own products, is not in itself sufficient to constitute unlawful conduct.

Legal analysis and interpretation

Since the guiding Orac ruling (Cass. May 29, 2009), Belgian law applies the fundamental principle of freedom of copy. A performance or product that is not (or no longer) protected by an intellectual property right may in principle be freely copied. However, the Orac ruling made the nuance that such copying becomes unlawful if done under “accompanying circumstances” contrary to fair trade practices, such as confusing advertising or any other form of unlawful conduct.

In legal practice thereafter, it was often argued that ‘image transfer’ - surfing along on the positive image and marketing investment of the original branded product without creative effort - could constitute such an unlawful accompanying circumstance.

With the Capri Sun ruling of 2026, however, the Court of Cassation draws this line considerably tighter and drastically limits the options for taking action against lookalikes. The Court now explicitly rules that the derivation of the fame and goodwill that preceded investment is legally indistinguishable from the mere (permitted) copying of the performance. With this, the Court gives a strict interpretation of Article VI.104 of the Code of Economic Law.

However, the Court of Cassation could also have put a preliminary question to the Court of Justice of the European Union. Indeed, one could ask whether national jurisprudence that gives a quasi free pass to deliberately parasitizing on the fame of another's product is compatible with the European interpretation of fair market practices and Article 10bis of the Paris Union Treaty.

What this specifically means

The impact of this ruling for the business world is significant and affects the strategy of various players in the market:

• For brand owners and designers: This ruling is a hard lesson. It shows that you need to protect your creations and packaging as early and robustly as possible through hard intellectual property rights (trademark rights, design right, patents or copyright). Once this protection is removed, you are virtually outlawed for counterfeiting. You can act only if you can prove that the competitor is actively and unmistakably confusing consumers about the origin of the product. Demonstrating that one is ‘free-surfing’ on your marketing investments is no longer sufficient for a cease-and-desist order.
• For private label producers: This ruling provides you with considerable legal certainty and commercial comfort. You may adopt functional or unprotected forms of market leaders to create consumer recognition. As long as you use a clear, distinct visual identity (a distinctive own logo, significantly different color schemes, own text and graphic elements) to prevent consumers from being mistaken about who the actual producer is, you are in principle acting perfectly legally.

Frequently Asked Questions (FAQ)

What is parasitic competition or hooking?
Parasitic competition is a commercial practice whereby a company deliberately enters into the territory of a successful competitor, with the aim of profiting free of charge from its brand recognition, investments and accumulated goodwill. However, under Belgian law, such copying is not in itself an infringement, unless intellectual rights are violated or active confusion is created among the target audience.

Can I just copy a competitor's packaging or product?
Yes, the basic principle in Belgian law is freedom of copy. If there is no valid intellectual property right (such as a patent, shape mark or design right) on the packaging or product, you may generally copy it. However, you must always ensure that your own version is sufficiently visually distinctive (for example, by using your own brand name and different colors) to avoid consumer confusion about the origin.

What legislation regulates unfair competition in Belgium?
In Belgium, unfair competition and market practices are regulated primarily by Book VI of the Economic Law Code (CEL) This book contains specific provisions to protect consumers and businesses against misleading and aggressive commercial practices.

Conclusion

With the recent Capri Sun ruling by the Court of Cassation, the line between permissible copying and unfair competition has been drawn more sharply than ever in Belgium, much to the detriment of the right of action against mere parasitic competition. The strategic deployment, registration and monitoring of your intellectual property rights from the very beginning is therefore absolutely vital for your business.