ACTS THAT MAY CAUSE CONFUSION AND THEIR INFLUENCE ON TOURISM 385 a business initiative is imitated, this forces its creator to improve on or to create a new initiative in order to separate itself from its competition again (Sandoval, 2018). Some legislation, including Colombian and Spanish laws, are almost identical in their regulation of imitation acts. Articles 11 and 14 of Ley 3/1991 and Ley 256/1996 respectively establish the aforementioned premise of free imitation, as long as it does not generate a likelihood of confusion or a likelihood of association. Of course, association and confusion are not the same, but their practical effects as a result of incurring in a relative prohibition do coincide. Further, the likelihood of confusion must be in place for the lkelihood of association to be appreciated (OEPM, 2012). Other legislation, like the German Act Against Unfair Competition, in its section 4.9, regulates a mixture of unfair competition acts. Amongst these acts is the offering by a firm of goods or services that are replicas of those of a competitor. This set the idea that the standard structure in regulating imitation acts is to allow them, but only on the condition they do not interfere with third parties’ rights. Another aspect related to the regulation of imitation acts is that some legislation, in Colombia or Spain for example, states that in the likelihood confusion/association is somehow inevitable then the unfairness must be excluded from the appreciation. This provision, although founded on the freedom of competition, is a breeding ground for subjectiveness when determining whether an imitation act is or is not unfair. This results in a very complex and undetermined scheme to establish unfairness in imitation acts, mainly in those where no (IP) right has been infringed upon. In fact, the way it is stated in both laws mentioned above, clearly states that some imitations acts (even when infringing) may be excused if they are understood as necessary, hindering the enforcement of certain exclusive rights through an unfair competition action. For instance, in Zure Leku S.L. v. Nekar Vectorial S.L. (STS 1629/2017), the plaintiff (Zure Leku) alleged unfair competition in the form of an imitation act through a trade secret violation. Imitation, in this case, consisted of the use of a high contrast visual plane illegally acquired from an encrypted webpage. High contrast planes are those used for visually impaired people, so it is not erratic to assume they are a commercial, and even social, need. However, it was not the imitation, but the trade secret breach that opened the door to the unfair competition system.
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