386 COMPETITION LAW IN TOURISM Zure Leku S.L. v. Nekar Vectorial S.L. is but one example of how the subjectivity load of the so-called necessity for imitation affects the enforcement of IP exclusive rights. Such situation plays a particular role in the tourism industry where imitation acts are so common, especially within certain territories where the amount of resources, activities and attractions to offer is limited. 2.3. Specifics of Imitation Acts The concept of unfair imitation acts entails a double standard. First, it must undoubtedly be determined as an imitation and second, such imitation must be deemed as unfair. Nevertheless, the line between freedom of imitation and unfair imitation is a thin one. The balance between what can or cannot be imitated is often broken and the coverage offered by the freedom of imitation principle only makes it more difficult to maintain. Imitation is understood as the precise copy of essential elements, not to be considered accessory elements, that may have an influence on what is called “competitive singularity” (STS 1629/2017). Further, the object of protection which would be the material creation (technical, artistic, static or ornamental) plays a significant role as it determines the difference between imitation and confusion acts, and also establishes the limits of what can be considered free imitation. Once the “imitation” element has been determined, the unfairness of the act must also be established. In this order, most legislations adopt free imitation as a principle and point out the exceptions to this “natural state of fairness” as the border that imitation acts should not cross in order to comply with UC regulations. Generally, legislation considers three scenarios where the unfairness is clearly shaped: 1. Whether the imitation comprises the infringement of an exclusive right. Logically, because the imitation of assets protected by IP laws exceeds the limits of what is free to imitate. When a right is enforced through IP and UC actions, the legal system must deal with possible action overlapping. This is due to historical reasons, as (McKenna, 2007) stated, “Trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors”. This is the result of trademark prosecution being an early form of protection against unfair competition practices which originated mostly from judicial decisions. Some of these decisions are perfect examples of how UC and IP are intrinsically linked when it comes to imitation acts that
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