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Design of clothes imitation

Nowadays there are numerous cases in which competitors copy and replicate designs of popular clothing brand. The Bulgarian Law on the Protection of Competition prohibits the supply of goods or services with appearance, packaging, marking, name or other characteristics which mislead or may mislead you about the origin, the manufacturer, the seller, the manner and place of manufacture, the source and the manner of acquisition or use, quantity, quality, nature, consumer properties and other essential characteristics of the good or service.

Commission for Protection of Competition (CPC) considers that the essential element of imitation of goods (inc. imitation of clothes design) relates to the possibility the product to mislead the consumer. CPC draws attention that most consumers are only able to perceive the design of products in general, remembering some of their essential elements as a general impression. Therefore, the possibility of confusion should be examined primarily in view of the similarities between the compared items and not the differences. The assessment of whether there is an imitation should be carried out with view of the overall visual effect through which the product is perceived by the average consumer. The existence of few and insignificant differences in the appearance of the imitation product does not in itself exclude liability for unfair competition through imitation. When the individual elements of the appearance as a whole achieve similarity to a product of a competitor established on the market, this creates an objective possibility for consumer’s confusion with regard to the good or the manufacturer. It is essential to have similarity or identity in the main elements which are characteristic and memorable and by which the consumer associates the product or the seller.

In one of its resolutions in 2017 CPC points out that the garments in question offered by the parties involved in the dispute have not been branded and name. Therefore the specific analysis of their similarity is necessary only in view of their appearance, patterns, color layout and design, as well as the extent to which the products are sufficiently different and distinctive to allow full differentiation of manufacturer/seller. The use by the seller of similar elements on women’s dresses is able to dispel attention from the differences that are not particularly relevant in this case, leaving the overall impression of similarity. The impression establishes the possibility of confusing consumers about the garments offered.

When establishing an infringement of unfair competition rules through imitation, the assessment is made in view of the overall visual effect through which the product is perceived by the average consumers, and not by the relevant experts. Usually the consumer perceives the design as a whole and does not pay attention to the details, especially when it is not possible to compare the different products directly.

As a result of the analysis of CPC concluded that there was a similarity between the garments to the extent that it could lead to confusion of the consumer and therefore there was an infringement of the prohibition of unfair competition through imitation. That results in administrative and punitive liability. CPC has the right to impose pecuniary penalty to legal entities for breaching the ban for unlawful completion. The penalties may amount up to 10% of its total turnover in the preceding financial year.