What to do when a competitor slavishly copies your product but your trademark and copyright fail?

When a competitor markets a cheap copy of your product, the first reflex is usually to invoke trademark rights or copyright. 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) and Article 10bis Paris Convention) then provides a valuable safety net: if there are sufficient “attendant circumstances” - systematic copying behavior, confounding and parasitism - a cease-and-desist order can be obtained even without a successful IP claim.

The facts: a skin treatment device and its cheaper copy

Pollogen Ltd. an Israeli manufacturer, has been marketing the device “Geneo” (previously “Geneo+”) 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.

In late 2019, Pollogen found that LA Poppe BV offered through its web shop a device under the name “Oxygen+” 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 “OxyGeneo” and “Tripollar,” and that self-adhesive stickers on consumables concealed the characters “POLOGEN” (with a single “L”) and “CAQSUGEN” (with “Q” instead of “P”). 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.

After a descriptive seizure regarding counterfeiting (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.

Appeal court decision

The court applies a layered analysis and deals successively with each legal basis.

Trademark law: largely rejected

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 “UMVO”): the relevant audience (aesthetic doctors, beauticians) will understand “tripollar” as a transliteration of the English term “tripolar”, referring to tripolar radiofrequency.

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 “oxygen” and the Greek “neos,” but as a neologism consisting of “Oxygen” + the meaningless suffix “eo.” The minimal distinctiveness suffices.

Nevertheless, the court dismissed all trademark infringement claims:

• OXYGENEO vs. OXYGEN+: the trademark OXYGENEO is registered for “medical instruments”, while the Oxygen+ device is undisputedly a purely cosmetic treatment device. No identity nor similarity of goods - application conditions of art. 9.2.a and b UMVO not fulfilled.
• GENEO vs. OXYGEN+: even with weak visual and phonetic similarity, it is neutralized by the clear and fixed meaning of “Oxygen,” which the relevant public will immediately understand as oxygen + plus. Application of the Equivalenza case law (ECJ March 4, 2020, C-328/18 P, EUIPO/Equivalenza Manufactory).
• POLLING and CAPSUGING on consumables: although visible after removal of stickers, these signs do not constitute “use as a trademark” in the course of trade. The stickers are clearly not intended to be removed by the average consumer; the packaging presents itself to the end user exclusively under the signs “Lesley-Ann Poppe” and “Oxyfoliate”/”Oxygel”. The infringing sign is effectively completely invisible.
• GENEO as an AdWord: no infringement since the advertisement did not make it impossible or difficult for the observant Internet user to determine that the goods did not come from Pollogen (cf. ECJ March 23, 2010, C-236/08, Google France).

Copyright: absence of originality

The court strictly applies recent Court of Justice case law. Pursuant to art. XI.165, § 1 CEL and the directive 2001/29/EC requires copyright protection that the work is the author's own intellectual creation, reflecting his personality by expressing free and creative choices (ECJ Sept. 12, 2019, C-683/17, Cofemel; ECJ 11 June 2020, C-833/18, Brompton Bicycle; ECJ December 5, 2025, C-580/23, Mio and C-795/23, Haller).

For the Geneo device, the court ruled that the alleged features (rectangular panel, display screen, black trapezoidal base, two parallel lines, transparent holders) are predominantly technically determined, banal or obvious. Their combination does not reflect the author's personality by giving the device a unique aspect. Attractiveness, elegance or a striking visual effect do not suffice (cf. Cofemel, r.o. 55).

The same conclusion follows for the graphical user interface (GUI): most of the features are purely functional (buttons, sliders, timestamps) and the banal arrangement, font and color choices do not deviate from what was common when it was created in 2013. Again, creative nature cannot be assumed; it must be demonstrated, which Pollogen did not do.

Unfair market practices: deter parasitism and slavish imitation

Here Pollogen does win its battle. The court accepts that putting the Oxygen+ device with accompanying consumables on the market constitutes an act of confusing slavish imitation and parasitism, in violation of art. VI.104 CEL, art. VI.105, 2°, 6° and 8° CEL and art. 10bis Paris Convention.

The decisive elements:

• A quasi-identical overall impression between Geneo and Oxygen+, both for the device, GUI and consumables.
• A far-reaching, accumulated, systematic copying behavior, inconsistent with general industry trends.
• WhatsApp correspondence between LA Poppe and her Chinese supplier showing that she knew about the Geneo device and knowingly ordered a copy “with extremely minimal personalization”.
• Effectively established confusion in the marketplace: beauty salons used promotional material from Geneo to tout their treatments with the Oxygen+.

The court imposed a cease-and-desist order in Belgium, subject to a penalty of €5,000 per single infringement (per device or advertisement), with a maximum of €500,000.

Legal analysis and interpretation

The negative reflex effect and the Lego Juris ruling

The important legal key is the so-called “negative reflex effect” and its limits. LA Poppe argued that a sign or design that does not meet the substantive requirements of trademark or copyright protection can no longer hide behind market practice law. The court rejected this contention on principle.

Relying on the ruling Lego Juris/MEGA Brands (ECJ Sept. 14, 2010, C-48/09, para. 61) and the case law of the Benelux Court of Justice (BenGH Dec. 23, 2010, A2009/3, English t. Daewoo), the court held that Union law trademark law (Directive (EU) 2015/2436, recitals 40-41) does not preclude the application of national rules on unfair competition. The holder of an invalid or unregistered right thus retains the possibility of invoking common law against “confusing conduct” within the meaning of Article 10bis, paragraph 3, 1° Paris Convention.

The basic rule remains that imitation per se is permitted. One who directly benefits from the investments of another without his own creative efforts does not yet commit an act contrary to fair market practices. It becomes unlawful only when “attendant circumstances” color the imitation - confounding, parasitism in the narrow sense, or any other form of unlawful conduct (Cass. May 29, 2009, Orac).

In this case, those attendant circumstances are amply present: the quasi-identical copy, the deliberate intent evidenced by the WhatsApp communication, the use of corresponding signs, AdWords strategy, pricing to a fraction and actual established confusion in the market. The cumulative impact makes the copying conduct unlawful.

The impact of Cofemel, Brompton and Mio on copyright for designs

The court's analysis confirms that Belgian case law strictly follows European harmonization. Since Cofemel (2019) and Brompton Bicycle (2020), it is clear that:

• The design law criterion of “individual character” and copyright “originality” should not be confused.
• An aesthetically striking visual effect is not sufficient for copyright protection.
• Technically determined choices and banal, obvious elements do not qualify.
• The court must concretely identify the creative choices in the form; creativity cannot be assumed (ECJ 5 December 2025, C-580/23, Mio, para. 65).

For industrial design and GUIs, the bar is thus set high. Products with “iconic” design do not automatically receive copyright protection - the author must be able to demonstrate creative free choices in concrete terms.

Hiding brands under self-stickers

An instructive side point: the court rules that affixing stickers that completely and permanently cover the infringing signs for the average consumer does not constitute “use as a trademark” within the meaning of art. 9 UMVO. This assessment seems an efficient escape route, but is neutralized by the court in this case via the market practice route. The question of whether this would be different if the stickers were easily removable (without breaking) was left open by the court - no preliminary question necessary.

Relationship to previous case law on this blog

The Pollogen ruling joins a series of recent rulings discussed earlier. In the Capri Sun ruling (Cass. March 2, 2026) and in the Brosser ruling (Ghent, Oct. 13, 2025), the court held tightly to freedom of copy: without additional unlawful circumstances, image transfer or the use of a banal color combination does not suffice for a cease-and-desist order. In the Market Rock judgement (Brussels, Aug. 12, 2025), on the other hand, an injunction order was issued based on Article VI.104 CEL, despite the plaintiff's shaky trademark position.

The Pollogenruling explicitly places itself in the latter line. The combination of a quasi-integrated copy, copy intent proven via descriptive seizure, and effective confusion in the market constitutes the textbook example of the “accompanying circumstances” that make imitation unlawful - precisely the exception that the Court of cassation in Capri Sun and Orac expressly left open.

What this specifically means

For IP holders and producers

• Stack your legal foundations. A summons may not rely solely on trademark or copyright. Systematically add Article VI.104 CEL and Article 10bis Paris Convention. This ruling shows that the “market practice route” can be successful where IP rights fail.
• Evidence is everything. Pollogen won because it obtained LA Poppe's WhatsApp correspondence with the Chinese supplier on file through a descriptive seizure regarding counterfeiting. The descriptive seizure (art. 1369bis Jud.C.) is a powerful tool even if no IP infringement is subsequently withheld - the eventual damages for wrongful seizure are not automatic (ECJ Sept. 12, 2019, C-688/17, Bayer; ECJ Jan. 11, 2024, C-473/22, Mylan).
• Document confusion. Practical evidence of marketplace confusion (third-party misuse of your promotional materials, customer inquiries) significantly strengthens the market practice claim.
• Legal processing is not automatic. The court confirmed that a waiver is interpreted restrictively and that a correspondence between lawyers generally does not qualify as an unambiguous waiver. Moreover, under Article 61 UMVO, a five-year forbearance period applies.

For importers and distributors of “copy” products

• The absence of a valid IP claim is not a free pass. Anyone who systematically and knowingly adopts the “look and feel” of an established competitor risks a cease-and-desist order under market practice law.
• Internal communications can catch up with you. WhatsApp messages, emails and order instructions to suppliers can enter the file via descriptive attachment and provide evidence of intent to copy.
• Artificially “personalizing” a purchased copy is not enough. A different logo, a different name, your own color code - if the overall impression remains quasi-identical, you fall under slavish imitation.
• Hiding brands under self-stickers is risky. While this can protect you from trademark infringement, the market practices route remains open.

Frequently Asked Questions

Can I stop a competitor copying my product even though I don't have a registered trademark or design?
Yes, in principle you can. Under Article VI.104 CEL and Article 10bis Paris Convention, you can take action against confusing slavish imitation and parasitism, even without a registered trademark. However, you must demonstrate concrete “accompanying circumstances”: conscious and systematic copying behavior, likelihood of confusion or effective confusion, and free-riding on your commercial efforts. Mere imitation without those elements remains permissible.

What is the difference between “slavish imitation” and “parasitism”?
Slavish imitation presupposes that a company copies a competitor's offerings so faithfully that confusion arises among the average consumer. Parasitism is broader: it is taking direct advantage of the efforts or investments of another, without one's own creative effort, in a manner contrary to fair market practices. Both can be invoked independently or together under Article VI.104 CEL.

Can I seek damages for wrongful seizure regarding counterfeiting if no infringement is found?
Not automatic. Pursuant to art. 1369bis/3, § 2 Jud.C., read in light of art. 9, para. 7 Enforcement Directive (as explained in CJEU Sept. 12, 2019, C-688/17, Bayer and CJEU Jan. 11, 2024, C-473/22, Mylan), the Belgian court decides on a case-by-case basis whether “adequate compensation” is justified. The judge may take into account the objective circumstances, in particular whether the seizing party could reasonably have been mistaken about the scope of his rights. Objective liability is not imposed by Union law.

Conclusion

The ruling of the Brussels Court of Appeal of March 9, 2026 is an important reminder that Belgian market practice law provides an autonomous and effective protection regime in addition to - and not subordinate to - intellectual property law. When a competitor slavishly imitates your product, a failed trademark or copyright action need not be the end of the story. The interplay between Article VI.104 CEL, Article VI.105 CEL and Article 10bis Paris Convention provides a valuable safety net, provided the evidentiary strategy is carefully constructed.

For companies that regularly encounter counterfeiting and copying, a proactive legal strategy is crucial: protect your trademarks as much as possible with valid registrations, document your commercial efforts, structurally monitor the market, and work with an attorney who has mastered both intellectual property law and market practice law.

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