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Under Dutch law you can stop a competitor’s lookalike product without a registered design or trade mark if your product has its own face on the market and the copy needlessly confuses buyers. This is slavish imitation, a form of unfair competition under Article 6:162 Dutch Civil Code. As a Dutch IP lawyer at MAAK Advocaten in Amsterdam, I help foreign manufacturers have such a copy assessed and stopped.
This article, part of intellectual property law in the Netherlands, is for foreign manufacturers and brand owners who find a copy of their product in Dutch shops, webshops or at a trade fair, and for foreign suppliers accused of copying.
What is slavish imitation under Dutch law?
Slavish imitation (slaafse nabootsing) is copying a product in a way that needlessly confuses buyers. It is not an IP right but a tort: conduct contrary to what is proper in society under unwritten law (Article 6:162(2) Dutch Civil Code).
Copying a product that is not, or no longer, protected by an IP right is in principle free. The exception applies when confusion among the public is to be feared and the copier failed to do everything reasonably possible and necessary to avoid it, without harming the soundness or usefulness of its own product (Supreme Court 20 November 2009, Lego/Mega Brands, ECLI:NL:HR:2009:BJ6999, para. 3.3.2). In 2017 the Supreme Court added that needlessly confusing imitation is unfair competition, in line with Article 10bis of the Paris Convention (Supreme Court 19 May 2017, Mi Moneda, ECLI:NL:HR:2017:938, para. 3.4.1).
Finding a cheaper copy of a product you invested in feels unfair. My first message to a client without a registered right is simple: you are not empty-handed in the Netherlands. In the first week I check with you whether your product has its own face on the market, whether the copy causes confusion, and whether the competitor could have chosen differently without making its product worse. That tells us whether a letter is enough or whether we go to court.
How does slavish imitation compare to passing off and trade dress?
Slavish imitation does a similar job to passing off in the UK and trade dress protection in the US: it lets a business act against a lookalike without registering anything. But it is a Dutch rule with its own test, so do not assume the same requirements.
The rules on slavish imitation have not been harmonised in the EU (Supreme Court 17 April 2015, Simba/Hasbro, ECLI:NL:HR:2015:1063, para. 3.8.4), so a result in another country says little about a Dutch case. Next to slavish imitation, design rights are often available:
| Slavish imitation | Unregistered EU design | Registered EU or Benelux design | |
|---|---|---|---|
| Legal basis | Article 6:162 Dutch Civil Code (tort) | Articles 11, 12 and 20(4) Regulation (EU) 2026/715 | Articles 11, 13 and 20(1) Regulation (EU) 2026/715; Articles 3.14 and 3.16 BCIP |
| Registration | Not needed | Not needed | Needed |
| Duration | No statutory term; lasts while your product keeps its own face | 3 years from first disclosure in the EU | 5 years, renewable up to 25 years |
| What you prove | Own face on the market, risk of confusion, avoidable copying | A new design with individual character, and copying | The copy gives the informed user no different overall impression |
What must you prove in a slavish imitation case?
You prove three things: your product had its own face on the Dutch market when the copy appeared, the copy creates a risk of confusion, and the competitor could have avoided that confusion without harming the soundness or usefulness of its product.
- Your product must have its own face: it must differ in appearance from similar products on the market, the Umfeld, at the time the copy appeared. How much depends on the nature and number of those products (Mi Moneda, paras. 3.4.2 and 3.5.1).
- The copy must cause confusion. The court looks at the overall impression, as seen by a not very attentive buyer who usually does not see the products side by side; similarities do not as a rule outweigh differences (para. 3.4.4). Confusion about origin counts too (para. 3.4.5).
- The copying must have been avoidable. A need for compatibility can justify a confusing copy, but the duty to limit confusion remains (Lego, paras. 3.3.2 and 3.5.2). In Lego, where the bricks had to fit the existing system, a different colour and name were enough (para. 3.5.3).
Most cases are won or lost on the own face, so I start with your market, not the copy. First, we collect the similar products on sale when the copy appeared, with dates. Second, we record which features set your product apart and that they are not technically necessary. Only then do we put the copy next to it, the way a not very attentive buyer sees it. A copy in another colour with a clearly different brand name can already keep enough distance. You want to know that line before the first letter goes out.
Why do popularity and a famous brand not help?
Slavish imitation protects the look of your product, not the reputation of your name. Popularity, fame or market share do not by themselves give a product its own face, because they may simply reflect the brand (Mi Moneda, para. 3.5.2).
Nor is a style protected merely because its imitation is needless and confusing; additional circumstances are required (Supreme Court 29 March 2013, ECLI:NL:HR:2013:BY8661, para. 3.6). If your strength is a well-known name, see trade mark protection in the Netherlands.
Do you have to act against every copycat?
Not all at once, but consistently. A product’s own face can fade as similar products appear and stay. You can be expected to make efforts to remove copies, but generally not to tackle all copiers at once regardless of market share (Mi Moneda, para. 3.4.3).
My advice is a set order. First the copier with the largest reach or the most confusing copy, then a short, clear letter to the others. Record whom you wrote to, when, and what happened. You do not have to sue everyone at once; you do have to show that you did not sit still.
Found a copy of your product on the Dutch market? Have your position assessed by a Dutch IP lawyer before you send the competitor a letter.
Slavish imitation or an EU design right: which claim comes first?
Rely first on the strongest right you have. An unregistered EU design protects a new design with individual character for three years from first disclosure in the EU, but only against copying. When that has run out, slavish imitation remains.
Since 1 July 2026 these rules are in Regulation (EU) 2026/715, which codifies and repeals Regulation (EC) No 6/2002 (Articles 163 and 164). The three-year term is in Article 12(1); under Article 20(4) an independent creation is not copying. A registered EU design lasts five years, renewable up to 25 (Article 13(2)), as does a Benelux registration (Article 3.14 BCIP).
You can combine claims: the Regulation is without prejudice to national law on unfair competition (Article 135), and so is the Benelux design right (Article 3.16(1) BCIP). See also design and model rights in the Netherlands and copyright on product design.
I choose the strongest claim and keep the other in reserve. Was your design first put on the EU market less than three years ago, and can we show copying? Then the unregistered EU design is often the direct route, because you need not prove an own face. Otherwise we rely on slavish imitation. The choice also affects your legal costs. And if your product will stay on the market for years, register the design: that costs little compared with proceedings.
A copy has appeared in the Netherlands: what do you do first?
Secure the evidence, map the market, check every right you have and then send a cease-and-desist letter with a short deadline. If that letter does not work, summary proceedings (kort geding) can follow.
Speed matters, especially for a seasonal product or just before a trade fair. In the first days I do four things.
- A test purchase, with the receipt, photos of product and packaging, and the date.
- The market position: since when your product has been on the Dutch market, and what else was on sale then.
- Every right you have: a registered or unregistered EU design, a trade mark on the shape or packaging, or copyright. A right you have, you use, because it makes the evidence easier.
- A cease-and-desist letter with a short deadline and, if it achieves nothing, Dutch summary proceedings (kort geding).
You usually do not need to travel to the Netherlands for this. We arrange the test purchase, the documents and the proceedings.
Foreign companies use this route: in Simba/Hasbro, the US Hasbro group obtained an injunction in Dutch summary proceedings against a German toy maker and a Dutch company, on copyright and slavish imitation (paras. 3.1–3.3). See also enforcing IP rights in the Netherlands.
Accused of slavish imitation: how do you respond?
Test the accusation against the same three requirements. Did the other product really have its own face when yours appeared? Does your product, as a whole, cause confusion? And did you keep your distance through colour, name, shape or packaging, or is the similarity technically necessary?
Take the deadline seriously, but sign no undertaking before you know where you stand.
I have also defended against an imitation claim. In an appeal in which I represented two of the respondents, a jewellery designer argued that their jewellery matched his designs in style and that his fame made that unlawful. The Amsterdam Court of Appeal held that a style cannot be monopolised and that those claims were insufficient (Amsterdam Court of Appeal 12 November 2019, ECLI:NL:GHAMS:2019:4060, para. 3.7.9).
Practice example: a British lamp maker (illustration)
Suppose a British manufacturer sells an unregistered designer lamp through Dutch retailers. Four years later a Dutch webshop offers a cheaper lamp with the same shade and base, under its own brand.
The unregistered EU design has expired (Article 12(1) Regulation (EU) 2026/715), so the claim rests on slavish imitation. Did the lamp still stand out among comparable lamps when the copy appeared? Could a not very attentive buyer think the copy comes from the same maker? Could the webshop have chosen another shape without making its lamp worse? Unlike Lego bricks, a lamp has no need to fit an existing system.
When should you instruct a Dutch lawyer?
Instruct a Dutch lawyer as soon as you see a copy on the Dutch market, or as soon as you receive a letter from the Netherlands. In both cases the first week determines how strong your position is.
At MAAK Advocaten I work out with you which right you have and what you can prove. Then we take the step that fits your goal: the copy off the market, an arrangement with the competitor, or calm, if your own product keeps enough distance. You know your product and your market. The Dutch procedure, the evidence and the contact with the other side, we take off your hands.
Costs depend on the test purchases, the Umfeld research and whether it ends with a letter or goes to court. In Dutch IP cases the loser can be ordered to pay the winner’s reasonable and proportionate legal costs (Article 1019h Dutch Code of Civil Procedure). That rule does not apply to the slavish imitation claim; in Simba/Hasbro that part was assessed under the court’s standard scale (liquidatietarief) (paras. 3.11.1–3.11.2).
How does MAAK Advocaten handle slavish imitation cases?
We act for both sides: the manufacturer whose product is copied and the business accused of copying. We assess product and market, write or answer the letter, negotiate and litigate where needed.
Often a letter and a conversation are enough. Sometimes it takes summary proceedings or full proceedings on the merits, before the Dutch courts in first instance and, where needed, on appeal.
Frequently asked questions about slavish imitation
What is slavish imitation under Dutch law?
Slavish imitation is copying a product in a way that needlessly confuses buyers. It is a tort under Article 6:162 Dutch Civil Code, not an IP right. Copying is free in principle, but not when confusion is to be feared and the copier could reasonably have avoided it.
Do I need a registered design to stop a copy in the Netherlands?
No. Slavish imitation needs no registration: you show that your product has its own face on the market, that the copy causes confusion and that the competitor could have avoided it. A design right, registered or not, often makes the case easier because you need not prove an own face on the market. A registered design is presumed valid; for an unregistered EU design you show when it was first made public in the EU and what gives it individual character, and that it was copied.
Is slavish imitation the same as passing off or trade dress?
No. It serves a similar purpose, acting against a confusing lookalike without registration, but it is a Dutch tort with its own test, which the Supreme Court links to Article 10bis of the Paris Convention. EU law has not harmonised these rules, so each country applies its own.
How long does protection against slavish imitation last?
Dutch law sets no fixed term. Protection lasts as long as your product keeps its own face on the market and the copy causes confusion. That face can fade when lookalikes appear and stay on the market, so act consistently against copies (Supreme Court, Mi Moneda, 2017).
Can I get my legal costs back in a slavish imitation case?
Partly. Recovery of reasonable and proportionate legal costs under Article 1019h Dutch Code of Civil Procedure applies to IP rights, not to the slavish imitation claim, which is costed on the court’s standard scale. If you also rely on a design right, trade mark or copyright, that part can qualify.
Primary sources
- Article 6:162 Dutch Civil Code (Burgerlijk Wetboek): tort; conduct contrary to what is proper in society
- Article 3.14 Benelux Convention on Intellectual Property (BCIP): term of a Benelux design registration (5 years, renewable up to 25)
- Article 3.16 Benelux Convention on Intellectual Property (BCIP): scope of a Benelux design right, without prejudice to tort law
- Article 1019h Dutch Code of Civil Procedure: legal costs in IP cases
- Regulation (EU) 2026/715 of 11 March 2026 on European Union designs (codification), OJ L, 2026/715, 30.3.2026: Articles 11, 12(1), 13(2), 20(4), 135, 162, 163 and 164
- Supreme Court 20 November 2009, Lego/Mega Brands, ECLI:NL:HR:2009:BJ6999: test for slavish imitation; standardisation as justification
- Supreme Court 29 March 2013, ECLI:NL:HR:2013:BY8661: no protection of a style via slavish imitation without additional circumstances
- Supreme Court 17 April 2015, Simba/Hasbro, ECLI:NL:HR:2015:1063: slavish imitation not harmonised in the EU; Article 1019h does not apply to the slavish imitation claim
- Supreme Court 19 May 2017, Mi Moneda, ECLI:NL:HR:2017:938: own face on the market, dilution, confusion test, popularity
- Amsterdam Court of Appeal 12 November 2019, ECLI:NL:GHAMS:2019:4060: a style cannot be monopolised (para. 3.7.9)
Has a competitor copied your product in the Netherlands, or have you been accused of copying? Put your situation to me: call +31 20 210 31 38 or send your question through my page as Dutch intellectual property lawyer. — Arnout Gieske
