In many Romanian brand disputes, the registered trade mark is only part of the problem. A competitor may avoid reproducing the brand name but adopt a strikingly similar label, colour scheme or product presentation. A former distributor may remove the proprietor’s trade mark while continuing to use marketing materials and online accounts that suggest an ongoing commercial relationship. An online seller may combine legitimate descriptive terms with imagery and other elements designed to evoke an established brand.

In these circumstances, a conventional trade mark infringement claim may not address the conduct in its entirety. Romanian unfair competition law may provide an additional cause of action, directed not only at the sign being used but at the way in which the defendant competes on the market.

A separate cause of action

The principal legislative instrument is Law No. 11/1991 on the suppression of unfair competition. It requires businesses to observe honest commercial practices and the general principle of good faith.

Alongside certain specifically identified practices, the law contains a broader prohibition covering commercial conduct that is contrary to honest practices and good faith and causes, or is capable of causing, harm to market participants. This broader provision is particularly relevant to disputes involving product presentation, commercial identity and conduct intended to create an association with another business.

Although “passing off” may provide useful shorthand for counsel from common-law jurisdictions, it is not the legal test applied by Romanian courts. A claimant must establish the requirements of the Romanian statutory cause of action rather than simply demonstrate the elements of passing off as understood in another jurisdiction.

Unfair competition and trade mark infringement should therefore be treated as parallel but distinct claims.

A trade mark infringement action focuses on the exclusive rights conferred by a registered national mark, an EU trade mark or an international registration effective in Romania. The analysis generally concerns the protected sign, the defendant’s use of that sign in the course of trade and the relevant statutory test for infringement under the Romanian Trade Mark Law or the EU Trade Mark Regulation.

An unfair competition claim examines the defendant’s commercial behaviour in its wider market context. The existence of similarity remains relevant, but it is considered together with matters such as the parties’ market presence, the presentation of the products, the sales channels, the defendant’s knowledge of the earlier business and the effect of the conduct on customers and competitors.

Lookalike packaging and product presentation

Unfair competition claims can be significant where a competing product does not reproduce the claimant’s word mark but follows the visual architecture of its packaging.

The disputed elements may include the arrangement of information, colour combinations, graphic devices, illustrations, typography, label shape and the positioning of individual components. Each element may be commonplace when considered separately, while their combination creates an overall presentation close to that of the established product.

Similarity alone, however, does not establish unfair competition. Romanian law does not prevent competitors from using functional features, descriptive information or visual conventions that are customary in a particular sector. Nor does it grant an indefinite exclusive right over product appearances that were never protected, or are no longer protected, by design, copyright or trade mark rights.

The relevant question is whether the defendant’s conduct, considered as a whole, departs from honest commercial practices and is capable of causing commercial harm. Evidence that the defendant has deliberately reproduced distinctive, non-functional features, particularly in circumstances where it had access to the claimant’s products or marketing materials, may be highly relevant.

Unregistered signs and commercial identity

An unfair competition claim may also assist where the claimant relies on an element of commercial identity that has not been registered as a trade mark.

Examples may include an unregistered product name, a campaign line, a recurring visual presentation, distinctive retail materials or another identifier that customers have come to associate with a particular business. Company names and online trading identities can raise similar issues, especially where their use creates the appearance of an economic or organisational connection.

The absence of a registration does not dispense with the need for evidence. The claimant should be able to demonstrate prior commercial use in Romania, the manner and duration of that use, the relevant public’s exposure to the sign and the commercial significance acquired by it.

Unfair competition law should not be approached as a substitute registration system. A claimant cannot assume that prior use of an unregistered element gives it an exclusive right comparable to a registered trade mark. The strength of the claim will depend on the market identity that has actually been established and on the unfair character of the defendant’s conduct.

Former distributors and commercial partners

Disputes following the termination of a distribution, agency, franchise or manufacturing relationship frequently extend beyond ownership of the registered mark.

The former commercial partner may retain control of a Romanian-language website, social media account, customer database, marketplace page or telephone number previously used for the brand. It may continue to display historical promotional materials or refer to itself in terms that suggest it remains an authorised representative. In other cases, the former partner launches a competing product using knowledge of the proprietor’s positioning, customers and launch plans.

Some of these acts may constitute trade mark infringement. Others may be better characterised as unfair competition, breach of contract, misuse of confidential information or a combination of causes of action.

The contractual record is particularly important. Distribution agreements, termination notices, brand-use provisions, correspondence concerning local marketing assets and evidence of the parties’ conduct after termination can determine whether the continued use is unauthorised and whether it is liable to mislead the market.

Online conduct

Romanian brand disputes increasingly arise from conduct taking place across several digital channels rather than from a single use on physical goods.

Marketplace listings may use an established brand’s photographs while supplying unrelated products. Sponsored advertisements may imply that the advertiser is an authorised dealer. Social media accounts may reproduce another business’s visual identity, and domain names or page titles may create an association that is not apparent from the defendant’s trade mark alone.

The assessment should not be limited to an isolated screenshot. The complete customer journey may be relevant: the search result or advertisement, the landing page, the product listing, the checkout process and the communications sent after purchase.

Digital evidence can also change quickly. Listings are edited, advertising campaigns expire and accounts are transferred or deleted. Evidence should therefore be preserved before a warning letter is sent. Depending on the circumstances, this may involve dated captures, test purchases, platform records and formal recording of the relevant online content.

Denigration and comparative advertising

Brand disputes are not confined to imitation. Statements made about a competitor or its products may also engage unfair competition rules, particularly where they are false or capable of damaging the competitor’s market position.

Comparative advertising requires a separate analysis under Law No. 158/2008 on misleading and comparative advertising. A comparison must, among other requirements, be objective, verifiable and non-denigratory. It must not create confusion, take unfair advantage of the reputation of a competitor’s mark or present goods as imitations of products bearing a protected trade mark.

A communication may therefore raise several issues at the same time: trade mark use, unlawful comparative advertising, denigration and unfair competition. The appropriate claims and enforcement routes should be selected according to the content, audience and means of dissemination of the communication.

Evidence determines the scope of the claim

An unfair competition case is rarely decided by a trade mark certificate and a side-by-side comparison alone. The evidence must explain how the parties operate on the Romanian market and why the conduct is commercially unfair.

A claimant should ordinarily consider evidence relating to:

• the date and extent of its entry into the Romanian market;
• sales volumes, distribution channels and customer reach;
• advertising expenditure and the circulation of promotional materials;
• the consistency and distinctiveness of the product presentation;
• customer enquiries, complaints or instances of mistaken association;
• the defendant’s access to the claimant’s products, materials or commercial plans;
• the timing and circumstances in which the competing presentation was adopted;
• the appearance of the products in their actual retail or online environment;
• lost listings, diverted orders, price erosion or reputational damage; and
• the defendant’s response after being informed of the claimant’s rights.

Evidence created for another jurisdiction should not simply be transferred into the Romanian proceedings without review. Global sales figures and international marketing materials may provide context, but they do not necessarily establish the claimant’s position on the Romanian market. Foreign-language documents may also require translation, while extensive datasets should be organised so that their relevance can be readily understood by the court.

Civil proceedings and the Competition Council

A business with a legitimate private interest may bring a civil action directly before the competent Romanian court. It is not required first to submit a complaint to the Romanian Competition Council.

The civil route may be used to seek the cessation and prohibition of the unfair practice, as well as compensation for pecuniary and non-pecuniary loss. Romanian law also permits urgent relief where this is necessary to prevent imminent harm, subject to the conditions applicable to interim proceedings.

The Romanian Competition Council has a different role. Under the current administrative framework, its intervention is directed at practices capable of affecting the proper functioning of the market and therefore engaging a public interest. A complaint to the authority must contain evidence both of the alleged practice and of the harm caused or likely to be caused. The authority may decline matters that remain essentially private disputes without a sufficient effect on the market.

For most bilateral brand conflicts, a civil action is therefore the route through which the claimant controls the claims, evidence and remedies sought. An administrative complaint may nevertheless be relevant where the conduct has wider market effects or affects a substantial number of businesses or consumers.

OSIM, the Romanian trade mark office, does not determine private claims concerning unfair market conduct. Proceedings before OSIM may address the registration, opposition, revocation or invalidity of a Romanian trade mark, but they do not replace an action seeking to stop the way in which a business presents or markets its products.

Combining unfair competition with IP claims

Depending on the facts, unfair competition may be pleaded together with trade mark infringement, copyright infringement, design infringement, breach of contract or misuse of confidential information.

The claims should not merely repeat one another. The pleading should identify which conduct infringes the registered right and which additional circumstances render the defendant’s behaviour commercially unfair. These may include copying the overall presentation, implying an authorised relationship, exploiting information obtained during a prior commercial relationship or combining several individually lawful elements in a manner designed to create an association with the claimant.

This distinction also matters for remedies. Measures available under intellectual property legislation, including measures directed at infringing goods, do not automatically apply to a standalone unfair competition claim. Each remedy should be connected to its proper legal basis.

Certain confusing uses of business identifiers or packaging may also have criminal implications under Law No. 11/1991. Whether a criminal complaint is appropriate requires a separate assessment of the statutory elements, the available evidence and the commercial objectives of the rights holder.

Early assessment is essential

Unfair competition should not be added mechanically to every Romanian trade mark action. In some cases, the registered-right claim fully addresses the conduct. In others, an unfocused unfair competition allegation may add complexity without improving the claimant’s position.

Its value becomes clearer where the dispute concerns the defendant’s overall market behaviour rather than the reproduction of a particular registered sign. This is often the case with lookalike products, misleading claims of affiliation, former commercial partners and coordinated conduct across physical and digital sales channels.

The assessment should take place before the first enforcement step. By that stage, counsel should have identified the conduct to be challenged, preserved the relevant evidence, reviewed the claimant’s own rights for possible vulnerabilities and determined whether the dispute calls for court proceedings, interim relief, an administrative complaint or a negotiated solution.

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This material provides general information only and does not constitute legal advice. Specific advice should be obtained in relation to individual circumstances.

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