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Product imitation is normally lawful

A recent (February 12 2007) judgment of Commercial Court 4 in Barcelona makes an interesting contribution to two issues: imitation and the requirements for imitation to be unlawful.

The judgment resolves in the first instance a dispute between two important groups in the business of making and/or marketing cosmetic products: L'Oréal Group and Coty or Coty-Astor Group. L'Oréal sued Coty-Astor for copying seven products:

  1. a face cream;
  2. a make-up base;
  3. a lip gloss;
  4. an eyelash mascara;
  5. a make-up base;
  6. an undereye make-up concealer; and
  7. an eyelash mascara

In addition to specific relevant product references, these products were each identified by means of the well-known trade marks L'Oréal and Astor (previously Margaret Astor).

Product imitation Under paragraph 6 of the judgment, the judge resorts to the Spanish Royal Academy dictionary to provide that "imitating is doing or endeavouring to do the same as another...

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