Unfair Competition Prevention Act Article 2, Paragraph 1, Item 3: Imitation of Product Configuration
1. Explanation of the Provision
Today, reproduction technologies, represented by 3D printers, have achieved significant development. As a result, the imitation of product configurations (especially dead copies) has become easy.
Imitators can minimize productization risks However, from the perspective of the first mover, the first mover's initial advantages are significantly damaged by the imitator's actions If such a state is left unchecked, it is conceivable that first movers will cease to appear Therefore, in order to maintain fair competitive order, the transfer, etc., of dead copy products is considered unfair competition as defined.
Note that if one stops at "only" the trial production of dead copy products and does not transfer them, it is not unfair competition This is because acts such as analyzing other companies' products during product development or actually trying to make products equivalent to other companies' products should not be regulated. Note that
if trial products are transferred for free, it naturally becomes unfair competition.
Here, product configuration refers to the shape of a product or the colors, etc., combined with the shape, that a consumer perceives through perception when using the product according to its normal usage Shapes of parts that are not visible during normal use are not considered product configurations, but parts of internal shapes that are visible are considered product configurations. An example of something where protection is granted even for internal shapes is a bag.
Note that even if a dead copy product is sold, there are cases where it does not constitute unfair competition. This is when (i) it is a common product configuration, or (ii) it is a configuration essential to ensure the function of the product. However, shapes essential to ensure function may be protected by patent rights If they are protected by patent rights, it does not constitute unfair competition, but it does constitute patent infringement. Care must be taken because being found liable for patent infringement is more damaging than being found liable for unfair competition.
2. Application Examples
・Reiwa 1 (Wa) 11673
In a Tokyo District Court case regarding the imitation of a design for women's underwear (night bra), there is a judicial precedent that recognized a claim for damages of over 200 million yen under Article 2, Paragraph 1, Item 3 of the Unfair Competition Prevention Act (Reiwa 1 (Wa) 11673) (court judgment text). Indeed, for apparel where the product life (product cycle) is relatively short, Article 2, Paragraph 1, Item 3 of the Unfair Competition Prevention Act seems to have utility. On the other hand, the claim under Article 2, Paragraph 1, Item 1 of the Unfair Competition Prevention Act was not recognized as special distinctiveness and well-known status were denied.
Also, regarding the criteria for judging substantial identity, it states that even if there are parts in the configuration of the product in question that differ from the configuration of another person's product, if the differences are based on slight modifications and the change given to the overall configuration of the product is poor, and it is evaluated as remaining a trivial difference when viewed from the entire product, the product in question should be said to have a substantially identical configuration to the other person's product.
・Unfair Competition Prevention Act Article 2, Paragraph 1, Item 3
(Definition)
Article 2: In this Act, "unfair competition" means any of the following:
3. The act of transferring, leasing, displaying for the purpose of transfer or lease, exporting, or importing a product that imitates the configuration of another person's product (excluding configurations essential to ensure the function of the product).
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