ACTS THAT MAY CAUSE CONFUSION AND THEIR INFLUENCE ON TOURISM 387 comprise IP assets (e.g. Coats v. Holbrook). However, at some point, the court distinguished trademarks into “technical trademarks” (arbitrary or fanciful names) and “trade names” (surnames, descriptive names, etc.). Under this division, imitation of technical trademarks was understood as trademark infringement, which could be condemned categorically without a legitimate explanation. On the other hand, the use of another’s trade name implied for claimants to prove that the defendant tried to pass off its products as those of the plaintiff. 2. Whether the imitation act entails negative effects for the market. This scenario is understood as the engendering of a likelihood of association or the misappropriation of another party’s reputation or efforts, not to be mistaken for misappropriation of a third’s reputation acts per se. Such effects are not cumulative, but alternative. In this regard, the likelihood of association must be appreciated in its broadest form, which means the inclusion of direct and indirect confusion for consumers, and that implies not only the misgivings regarding business origin but the confusion of one product with another. On the other hand, misappropriation of another party’s reputation results from the unfair imitation acts which create a false sense of relationship, identity or belonging between the imitator and the imitated, and the prestige or reputation of the imitated is misused by the imitator. Parasitic conducts like the use of equivalence lists or imitators offering certain accessories or complements for determined products of a third party, are good examples of such unfair conduct. It is crucial, however, not to confuse the misappropriation as a mere effect from the imitation act with the misappropriation of a third’s reputation as an unfair competition act itself, since both of them appear independently regulated in UC laws, as there can be other ways to misappropriate a third’s reputation without minutely imitating another party’s goods or services. Imitation is always part of a strategy directed to undermine a competitor. This can be achieved by abuse of freedom of imitation or for stopping or hindering in any way a competitor’s market position. Benefits obtained this way are mainly achieved from blocking the third party out, instead of the competitiveness of the imitator, which makes the practice unfair. All elements considered in determining an unfair imitation act consist on the conjoint appreciation of the imitation element as described above, resulting in one of the three scenarios exposed. However, some concerns arise in both theoretical and practical fields, mainly due to the likelihood of mistaking an imitation act for an act of confusion.
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