Law firm guidesIntellectual property and trade marks

They are copying your product and you never registered it

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

With no registered right, imitation is fought under the Unfair Competition Act before the Commercial Section of the Tribunal de Instancia. You must show confusion, undue exploitation of another's effort or reputation, or systematic obstruction. The period is one year from learning who copied you, and three from when the conduct ended.

You developed a product over two years, invested in moulds, in photography and in opening a sales channel, and never registered anything because it seemed you could wait. Now an almost identical version appears on the same shelf, with the same packaging format, the same colour range and a description copying whole sentences from your product page, at half the cost. A customer sends you a screenshot asking whether you have launched a cheap line. The copy has been selling for four months and you do not know how long you have to react.

The case, in five lines

What is brought: A claim in unfair competition for acts of confusion under article 6, imitation under article 11 and exploitation of another's reputation under article 12 of Law 3/1991, using the actions listed in its article 32.
Before which court: The Commercial Section of the Tribunal de Instancia (the first-instance court), in civil proceedings between competitors. It is not a matter resolved through administrative channels or before a regulator.
Deadline: Article 35 sets one year from when the action could have been brought and the entitled party learned who carried out the unfair act, and in any event three years from when the conduct ended. It is far shorter than the periods for trade mark actions.
Who can bring it: The competitor harmed by the conduct. Article 35 also refers to the separate regime for actions defending general, collective or diffuse consumer interests, which follows the General Consumer Protection Act.
Financial risk: Civil proceedings expose you to a costs order if you lose, require funds on account and usually call for expert evidence. The specific risk is article 11.1: imitation is free as a rule, and without showing confusion or undue exploitation the claim fails.

Copying is free as a rule: the unfairness has to be built

Article 11.1 of the Unfair Competition Act starts where nobody would want it to: imitating another's business or professional achievements and initiatives is free, unless they are covered by an exclusive right recognised by law. With no trade mark, no design and no patent, the legal starting point is not on your side, and the case consists precisely in getting out of that general rule.

The way out lies in paragraph 2: imitation is deemed unfair where it is apt to generate association on the part of consumers as regards the product, or where it involves undue exploitation of another's reputation or effort. These are two distinct situations and should not be mixed: one looks at the consumer and what they believe they are buying, the other at the imitator and what it saved by copying.

Paragraph 3 adds a third, less known door that is very useful against a large competitor: systematic imitation of a competitor's products and initiatives is unfair where that strategy is directly aimed at preventing or hindering its establishment in the market and goes beyond what may be regarded as a natural market response. Here it is not a product being judged, but a repeated pattern of conduct.

Confusion, imitation and reputation are three separate complaints

Article 6 treats as unfair any conduct apt to create confusion with another's activity, products or establishment, and states that a likelihood of association on the part of consumers as to the origin of the product is enough to found the unfairness. It is the natural route where the buyer may think the copied product comes from your company or from someone linked to it.

Article 12 addresses a different harm: the undue exploitation, for one's own or another's benefit, of the advantages of the industrial, commercial or professional reputation acquired by another in the market. And it adds a very specific case, the use of another's distinctive signs or false designations of origin accompanied by an indication of the true origin or by expressions such as model, system, type or class.

In practice all three provisions are pleaded together because the same facts may fit several of them, but each calls for different evidence. Confusion is proved through the market, exploitation of effort through your own investment and what the imitator did not spend, and exploitation of reputation through what the imitator says about you in its advertising and product pages.

Inevitability is the defence they will raise against you

The second paragraph of article 11.2 contains the answer the imitator will prepare: the inevitability of the risks of association or of exploitation of another's reputation rules out the unfairness of the practice. If the copied shape is dictated by the product's function, by a technical standard or by the sector's convention, there is nothing to complain of, however alike the end result may look.

That is why the case is won or lost in the breakdown. The whole product is not compared: feature by feature, the functional or market standard traits are separated from the arbitrary ones, those your company chose when it could have chosen otherwise, a particular proportion, an unnecessary finish, an order of colours, a sequence of texts. Coincidence in the arbitrary is what has no innocent explanation.

That work rests on expert evidence and on the record of your own development. Dated sketches, design files with their metadata, invoices for the moulds and the discarded versions prove two things at once: that the matching features were your decisions and not technical constraints, and that behind them lies real effort the imitator has saved itself.

One year from learning who, and three as an absolute ceiling

Article 35 sets the pace of the whole case. The unfair competition actions provided for in article 32 prescribe after one year from the moment they could have been brought and the entitled party learned who carried out the unfair act. These are two cumulative conditions, and the second requires identifying the person, not merely noticing that a copy exists on the market.

The same article closes with a ceiling that admits no argument: in any event, the actions prescribe after three years from the moment the conduct ended. That period runs even if you knew nothing, which is why an old copy that stopped selling four years ago falls entirely outside, regardless of when you found out.

The practical consequence is that here you cannot wait as in a trade mark matter, where article 45 of the Trade Mark Act allows five years. Email exchanges with the imitator, postponed meetings and months of hesitation eat up a very short period, and from day one it is worth recording when the copy was detected and when the person behind it was identified.

Stopping the sales does not wait for the judgment

With a one year period and a copy already selling, the tool that decides the outcome is the interim measure. Article 727 of the Civil Procedure Act contemplates, in its seventh measure, a court order to cease an activity provisionally or to refrain temporarily from certain conduct, which is what removes the imitated product from the channel while the case proceeds.

The same article offers complementary pieces: the intervention and deposit of income obtained through an activity deemed unlawful whose cessation is sought in the claim, preventive attachment to secure the money judgment, and preventive noting where there are registrable assets or rights. And its eleventh measure allows any other measure considered necessary to secure the effectiveness of the relief that might be granted.

Article 35 refers to the actions of article 32, which is where the statute lists them. In practice the case is brought so that the conduct ceases, so that its effects are removed from the market and so that the harm caused is made good, and the order in which those claims are made depends on whether the urgent thing is to stop the sales or whether what matters is the money.

How we run the case, step by step

1
Dating your knowledge before the deadline becomes arguable
We record with a certain date when the copy appeared, when you detected it and when the responsible person or company was identified, because the year under article 35 starts from the coincidence of those last two facts.
2
Separating the functional from the arbitrary in your product
We break the product down feature by feature and mark which are dictated by function or by the sector standard and which were your own free choice. Only the latter serve to defeat the inevitability defence of article 11.2.
3
Gathering the evidence of effort and of confusion
We collect dated sketches, design files, development and tooling invoices, together with the messages from customers and distributors who confused the two products, which are the two legs of articles 11.2 and 6.
4
Seeking provisional cessation and filing the claim
We apply for the article 727 measures that pull the copy out of the channel and secure the outcome, and file the claim before the Commercial Section of the Tribunal de Instancia setting out confusion, imitation and exploitation of reputation.
5
Quantifying the harm and closing the flank for the future
We calculate the loss using sales figures before and after the copy appeared and the imitator's own data, and review which elements of the product can now be protected by an exclusive right so the episode is not repeated.

The evidence that decides the case

The two products side by side, with their packaging and product pages, so the feature by feature breakdown is done on objects and not on photographs.
The dated sketches, design files with metadata, discarded versions and invoices for tooling and development, which prove the effort of another that has been exploited.
Messages from customers, distributors or suppliers who took one product for the other or asked whether they came from the same company.
The imitator's advertising and product pages invoking your name or using expressions such as model, system, type or class referring to your product.
The dated notarial record of the shelf and the listing, together with a record of the exact moment you detected the copy and attributed it to someone.
The expert report distinguishing the features dictated by function or by sector standard from those that were your company's free choice.

What closes the door

Assuming that copying is unlawful in itself. Article 11.1 declares imitation free unless an exclusive right applies, and without showing association or undue exploitation the claim is dismissed.
Negotiating for months with the imitator without dating anything. The article 35 period is one year from learning who was behind it, and those talks do not interrupt it by themselves.
Comparing the products as a whole instead of feature by feature. If the arbitrary is not isolated from the functional, the inevitability defence of article 11.2 applies without effort.
Claiming over a copy that stopped selling more than three years ago. Article 35 closes the door from when the conduct ended, even if you have only just found out.
Seeking only money and not an injunction. While the copy stays in the channel, every month entrenches the imitator's position and devalues the original product.

The law that applies

Art. 11 Ley 3/1991 de Competencia Desleal. Declares free the imitation of another's products and initiatives unless covered by an exclusive right, and then deems it unfair where it is apt to generate association among consumers or involves undue exploitation of another's reputation or effort, excluding unfairness where those risks are inevitable. It further treats as unfair systematic imitation aimed at preventing or hindering a competitor's establishment in the market where it goes beyond a natural response. BOE-A-1991-628
Art. 6 Ley 3/1991 de Competencia Desleal. Treats as unfair any conduct apt to create confusion with another's activity, products or establishment, and states that a likelihood of association among consumers as to the origin of the product suffices to found the unfairness. It does not require completed confusion or proof that someone actually made a mistake: what is judged is the conduct's capacity to cause it. BOE-A-1991-628
Art. 12 Ley 3/1991 de Competencia Desleal. Deems unfair the undue exploitation, for one's own or another's benefit, of the advantages of the industrial, commercial or professional reputation acquired by another in the market. It singles out as unfair the use of another's distinctive signs or of false designations of origin accompanied by an indication of the product's true origin or by expressions such as model, system, type, class and the like. BOE-A-1991-628
Art. 35 Ley 3/1991 de Competencia Desleal. Sets the prescription of the unfair competition actions provided for in article 32: one year from when they could have been brought and the entitled party learned who carried out the unfair act, and in any event three years from when the conduct ended. It also refers to article 56 of the consolidated General Consumer Protection Act for actions defending general, collective or diffuse interests. BOE-A-1991-628
Art. 727 Ley de Enjuiciamiento Civil. Lists the specific interim measures that may be granted. Among them, a court order to cease an activity provisionally or refrain temporarily from certain conduct, the intervention and deposit of income obtained through an activity deemed unlawful whose cessation is sought, preventive attachment, the preventive noting of the claim over registrable assets or rights, and any other measure needed to secure the effectiveness of the judicial relief that might be granted. BOE-A-2000-323

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

Is copying my product unlawful if I never registered it?

On its own, no. Article 11.1 of the Unfair Competition Act declares free the imitation of another's products unless they are covered by an exclusive right. The copy becomes unfair when something more is present: that it is apt to generate association among consumers, or that it involves undue exploitation of another's reputation or effort, under paragraph 2 of that same article.

How long do I have to sue?

Less than you might think. Article 35 sets one year from when the action could have been brought and you learned who carried out the unfair act, and in any event three years from when the conduct ended. It is far shorter than the five years for trade mark actions, and talks with the imitator do not stop it by themselves.

The imitator says its product could only look that way, does that work?

It is the defence the statute provides and it has to be dismantled. The second paragraph of article 11.2 provides that the inevitability of the risks of association or of exploitation of another's reputation rules out unfairness. The case is built by showing that the matching features were not inevitable but free choices of your company, and for that the functional elements are separated from the arbitrary ones.

They use my name saying type or model, does that count?

It counts, and it has its own provision. Article 12 deems unfair the undue exploitation of the advantages of the reputation acquired by another, and expressly mentions the use of another's distinctive signs accompanied by an indication of the true origin or by expressions such as model, system, type, class and the like. That advertising is preserved by notarial record because it gets corrected as soon as a letter arrives.

Can I get the copy withdrawn before the judgment?

Yes, through interim relief. The seventh measure of article 727 of the Civil Procedure Act contemplates a court order to cease an activity provisionally or refrain temporarily from certain conduct. To it may be added the intervention and deposit of the income obtained from the activity deemed unlawful, and preventive attachment to secure the future judgment.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.