Glossary
French: imitation de marque
Imitation is the use of a sign similar, but not identical, to an earlier trademark — what US law would call a colorable imitation. Similarity is assessed from three angles: visual, conceptual (intellectual) and phonetic. There is imitation when the signs are similar and they create a likelihood of confusion.
French and EU examiners compare signs on an overall impression basis rather than dissecting them into isolated components — the same “average consumer, imperfect recollection” standard runs through opposition, infringement and revocation cases alike. Each of the three angles can carry a case on its own:
A sign does not need to score high on all three to be found similar. Weakness on one axis (say, no shared letters) can be outweighed by strong similarity on another (the same underlying idea), and the more distinctive the earlier mark, the more readily a court or examiner will find imitation from a lesser degree of resemblance.
A striking illustration for US readers: the Paris Court of Appeal held that the French mark “PETIT DÉJEUNER DE LA PEAU” infringed the earlier mark “SKIN BREAKFAST” (Paris Court of Appeal, December 17, 2003) — the signs share no letters or sounds, but convey the same idea in translation. Conceptual similarity alone can carry an infringement or opposition case, a point worth remembering when clearing English-language marks for France: a mark that sounds and looks nothing like a prior French mark can still be blocked if a French consumer would translate it to the same idea.
The INPI held EBITDA similar to the earlier word mark EBTILDA (INPI, April 9, 2024, OP 23-3902): near-equal length, six shared letters forming common beginnings (EB-) and endings (-DA), the same three-beat rhythm, with the differing middle sequence too weakly perceptible to offset the overall resemblance. The decision is a good sample of how French examiners dissect signs letter by letter and syllable by syllable — more mechanically than a US DuPont-factor analysis, though the ultimate question (confusion) is the same.
US practice reaches a similar result through a different route: courts weigh the similarity of the marks as one factor among several (alongside strength of the mark, proximity of the goods, evidence of actual confusion, and the rest of the multi-factor test), with sound, sight and meaning all considered under that single factor. French and EU practice instead treats visual, phonetic and conceptual similarity as three independent, freestanding inquiries feeding into a global assessment of confusion — a more structured, checklist-like method that a US practitioner drafting an opposition or a cease-and-desist letter for France should track explicitly, rather than folding it into a single “similarity” paragraph as US pleadings often do.
Imitation is the central battleground in responding to a trademark opposition filed at the INPI or the EUIPO, and it drives the merits of any trademark clearance search — a search is only as good as the similarity analysis behind it. It also resurfaces in litigation: see evidence of infringement in France and trademark infringement in France. See also: similarity of signs, similarity of goods and services, trademark infringement.