The Judgement of the Regional Court of Girona of July 27, 2020 prosecutes some facts that according to the plaintiff constitute illegal conduct under the provisions of Articles 4, 6, 11.2 and 12 LCD. Such acts, in essence, consisted of the manufacture and distribution by the defendants of bird cages, of the same color as those manufactured by the plaintiff and interchangeable with the latter. In this review we focus on the unfair conduct provided for in Article 11.2 LCD.

In order to determine whether the conduct described in the complaint can be considered an offense under Article 11.2 LCD, the Court’s reasoning is based on the delimitation of the regulatory areas of Articles 6 and 11, both of the LCD. In Article 11, the factual situation is the imitation of services, unlike the offense under Article 6 LCD, in which the offense is the act of “confusion with the activity, services or establishment of others. In other words, while Article 11 is limited to cases of imitation of the services themselves, Article 6 covers the case of imitation of the “distinctive sign (in a very broad sense that includes the elements that are perceived in traffic as a form of identification or presentation of the service that refers to a specific business origin).

The imitation of services is free, “unless they are covered by an exclusive right recognized by law”, because this is established in Article 11.1 LCD, giving priority to the interest of the market over the corporate interest of competitors. However, there are two exceptions, provided for in Article 11.2 LCD: when the imitation “is suitable to generate the association by consumers with respect to the provision or involves an improper use of the reputation or effort of others”.

According to the doctrine of the Supreme Court (STS May 5, 2017), the disloyalty of the conduct is based on the premise that the imitated product has a “competitive singularity”, which happens “when it has features or characteristics that differentiate it from the usual services in the market sector, so that its recipients can identify and recognize it and, if the disloyalty of the imitation is based on the risk of association, attribute it to a certain business origin, differentiating it from the usual services in the sector from other companies”.

Transferring these doctrines of the Supreme Court to the supposedly prosecuted in the Judgment of the Provincial Court of Girona, the latter concludes that the existence of a “competitive singularity” is not proven. The singularities invoked by the plaintiff are not such. On the one hand, the fact that the products are interchangeable is not an illicit imitation, because it is precisely in such cases that “competition reaches its maximum exponent” (SAP Barcelona 26 September 2000). On the other hand, with regard to the other element highlighted by the applicant as a singularity, the green color of the cages, the Court considers in its Judgment that it has not been proven that the color, in itself, is a competitive singularity that allows the professional public, to whom this type of product is addressed, to identify its business origin by color, especially when it does not hold a position in the product, but is simply the color per se.