Can a competitor counterfeit my product if I do not have a valid trademark?

Under Belgian law, copying a product design is in principle permitted under the system of free competition, unless there is a specific intellectual property right such as a trademark or design. Without such protection, a “slavish copy” is only unlawful if there are additional circumstances, such as intentionally confusing consumers about the origin of the product. An Oct. 13, 2025, ruling by the Ghent Court of Appeal clarifies where the line lies between permissible imitation and prohibited deception.

The facts: a battle for the yellow-black brush

The case revolves around a conflict between two companies in the cleaning industry: DECOF and BOBRUSH. DECOF commercializes the ‘Safe Brush’ range, a set of brushes characterized by a specific yellow-black color combination.

BOBRUSH, a former distributor of DECOF, later launched its own ‘Brosser’ range.

This new range bore striking resemblances to DECOF's brushes, not only in colors, but also in shape and presentation in the store. DECOF did not take this and went to court for unfair market practices. The key question was whether BOBRUSH was allowed to sell these brushes and whether its communications to customers were permissible.

Court's decision: imitation is not infringement

The Ghent Court of Appeal found that the yellow-black color combination on bristles should be considered “banal”. Because these colors often refer to safety or danger, the average consumer sees them as a decorative or functional feature rather than a reference to a specific brand. Moreover, other players in the market also appeared to use similar colors.

The court's main conclusions were:

• No monopoly on colors: Without a valid registered trademark, one cannot claim the color combination “yellow-black” for brushes.
• Right to copy: The mere imitation of a product that is not protected by intellectual property rights is permitted in principle.
• Misleading communication: However, the court ruled that BOBRUSH did err by claiming in its marketing that its ‘Brosser’ range “replaces the existing range.” This gave the impression that DECOF's ‘Safe Brush’ range no longer existed and that BOBRUSH was the official successor, which was untrue.

BOBRUSH was ordered to cease these misleading communications and must publish the decision on its website and social media channels. However, a general ban on the sale of the brushes themselves was not imposed.

Legal analysis and interpretation

This judgment illustrates a controversial principle in Belgian economic law: the negative reflex effect of trademark law (contained in Article 2.19 BTIP). This means that those who do not enjoy trademark protection for a sign (such as a color combination) cannot still enforce similar exclusivity through the “unfair market practices” loophole. However, there is other caselaw thinking differently about this.

Interestingly, the court set the bar for parasitic competition (or free-riding) very high. Even if a company invests significantly in a particular “look and feel” and a competitor builds on it without its own creative effort, that in itself is not unlawful. According to the case law of the Court of Cassation taking advantage of another's efforts is inherent in free competition. There must be “attendant circumstances” contrary to fair trade practices, such as deception or the violation of trade secrets, to reach a conviction.

In this case, the court confirmed that the word mark (“Brosser” vs. “Safe Brush”) and the logos were sufficiently different. Consumers look primarily to the brand name to determine origin. The identical method of presentation on store shelves was not considered confusing because the method of display (large brushes at the bottom, small ones at the top) is a banal industry practice.

What this means for your company in concrete terms

This ruling has important strategic implications for both product developers and market challengers:

• For the designer: Never rely solely on the “uniqueness” of your range. If you want to protect a specific color combination or shape, timely registration as a Benelux trademark or drawing/model is essential. Without registration, you are legally weak against copycats unless they spread falsehoods about your company.
• For the competitor: It is permissible to draw inspiration from successful products on the market (within the limits of patent and copyright law). However, be careful with your commercial communications. Never use terms that suggest you are “replacing” another party or that you are the “new version” of their product if that is not contractually stipulated.
• For the distributor: Ex-distributors launching their own private label must communicate crystal clear. You may announce that you are running a new private brand, but you must not give the impression that your former partner's brand has ceased to exist.

FAQ: Frequently asked questions

Is copying a product always an infringement in Belgium?
No. Copying a competitor's product is in principle permissible on the basis of free competition. It only becomes unlawful if you infringe intellectual property rights (such as a registered trademark or design) or if you market the copy using unfair practices, for example by creating confusion about its origin.

Can I protect a color combination as a trademark?
You can, but the threshold is very high. The color combination must have acquired “distinctiveness,” meaning that the public immediately links the colors to your company and not to the function of the product. For banal combinations or colors with functional significance (such as yellow-black for safety), this is virtually impossible.

Can I say that my new product replaces the old brands in my range?
You must be very careful about this. You may communicate internally or to customers that you no longer distribute a brand and have replaced it with a private label in your own offering. However, you may not give the misleading impression that the original product no longer exists at all or that your product is the official successor to that other brand.

Conclusion

The line between fair competition and deceptive practices is thin. While copying a design in Belgium can often go unpunished for lack of intellectual property rights, courts severely punish misleading communications that undermine a competitor's market position.