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<\/a><\/figure>\n\n\n\nBOBRUSH, a former distributor of DECOF, later launched its own \u2018Brosser\u2019 range.<\/p>\n\n\n\n This new range bore striking resemblances to DECOF's brushes, not only in colors, but also in shape and presentation in the store<\/sup><\/sup><\/sup><\/sup>. DECOF did not take this and went to court for unfair market practices<\/sup>. The key question was whether BOBRUSH was allowed to sell these brushes and whether its communications to customers were permissible<\/sup><\/sup><\/sup><\/sup>.<\/p>\n\n\n\n The Ghent Court of Appeal found that the yellow-black color combination on bristles should be considered \u201cbanal\u201d<\/sup><\/sup><\/sup><\/sup>. 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<\/sup><\/sup><\/sup><\/sup>. Moreover, other players in the market also appeared to use similar colors<\/sup><\/sup><\/sup><\/sup><\/sup><\/sup><\/sup><\/sup><\/sup>.<\/p>\n\n\n\n The court's main conclusions were:<\/p>\n\n\n\n BOBRUSH was ordered to cease these misleading communications and must publish the decision on its website and social media channels<\/sup><\/sup><\/sup><\/sup>. However, a general ban on the sale of the brushes themselves was not imposed<\/sup><\/sup><\/sup><\/sup>.<\/p>\n\n\n\n This judgment illustrates a controversial principle in Belgian economic law: the negative reflex effect of trademark law (contained in Article 2.19 BTIP<\/a>). 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 \u201cunfair market practices\u201d loophole. However, there is other caselaw<\/a> thinking differently about this.<\/p>\n\n\n\n Interestingly, the court set the bar for parasitic competition (or free-riding) very high. Even if a company invests significantly in a particular \u201clook and feel\u201d 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<\/a> taking advantage of another's efforts is inherent in free competition. There must be \u201cattendant circumstances\u201d contrary to fair trade practices, such as deception or the violation of trade secrets<\/a>, to reach a conviction.<\/p>\n\n\n\n In this case, the court confirmed that the word mark (\u201cBrosser\u201d vs. \u201cSafe Brush\u201d) 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.<\/p>\n\n\n\n This ruling has important strategic implications for both product developers and market challengers:<\/p>\n\n\n\n Is copying a product always an infringement in Belgium?<\/strong> Can I protect a color combination as a trademark?<\/strong> Can I say that my new product replaces the old brands in my range?<\/strong> 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.<\/p>\n\n\n\n<\/a><\/figure>\n\n\n\nCourt's decision: imitation is not infringement<\/h2>\n\n\n\n
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Legal analysis and interpretation<\/h2>\n\n\n\n
What this means for your company in concrete terms<\/h2>\n\n\n\n
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FAQ: Frequently asked questions<\/h2>\n\n\n\n
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.<\/p>\n\n\n\n
You can, but the threshold is very high. The color combination must have acquired \u201cdistinctiveness,\u201d 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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\nConclusion<\/h2>\n\n\n\n
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