By:

Claudia Montoya
Laura Arcila

July 2026

Industrial design protects the appearance (design) of a product—that is, the way it is presented to the public to make it more appealing. It does not protect functionality.

“The purpose of industrial design lies in the fact that, when faced with different products that provide the same utility, consumers lean toward those that match their aesthetic preferences. Thus, manufacturers seek shapes for their products that are aesthetically attractive, given that a product’s sheer appearance can be the decisive factor for a consumer’s choice in the market.” (Prejudicial Interpretation No. 182-IP-2022)

In a recent ruling (Case File 110013199001 2023 23963 dated June 26, 2026), the Superior Court of Bogotá (TSB) addressed a case discussing whether the use of an industrial design constituted not only unfair competition, but also an infringement of industrial property regulations.

Several key points stand out:

Several key points stand out:

1. Photographs are not enough: According to the TSB, providing photographs is insufficient to establish the imitation of a protected design, as photos may not adequately verify whether one product is indeed imitating another’s industrial design.

2. Substantial vs. secondary differences: To determine infringement, it is necessary to step into the shoes of an “average consumer” and identify whether differences are substantial or minor. If substantial differences exist, no infringement is established. This is a crucial point, as the comparison is not based on similarities, but rather on verifying the differences between the competing products.

3. Defining the “average consumer”: The TSB reiterated that the Court of Justice of the Andean Community defines the “average consumer” as someone who, when faced with mass-consumption products, is “normally presumed to be informed and reasonably attentive, whose level of perception varies depending on the category of goods or products.” As noted in previous writings, the standard of the average consumer cannot be absolute. While reasonable attentiveness is expected, its definition depends on the type of product and market—a consumer of mass-market goods (the example used by the judge) is not the same as a consumer of luxury branded jewelry.

4. The consumer’s role in decision-making: Once the average consumer is identified, according to the TSB, it is this consumer who determines whether the differences between two industrial designs are substantial enough to influence their product choice.

5. Failure of the plaintiff’s evidence: In this case, the plaintiff’s evidence fell short because it failed to prove the average consumer’s perception in order to determine whether substantial differences existed. Merely comparing images and physical samples without accounting for the average consumer’s perception was not sufficient.

6. Rejection of the expert report: The TSB rejected the plaintiff’s expert report for failing to comply with legal requirements (Article 226 of the General Code of Process – CGP) and for fundamental flaws in the comparative methodology, which should have been conducted from the perspective of the average consumer. The expert report needed to establish whether the differences between the compared industrial designs were substantial or not, whether those differences were relevant, and if the consumer could distinguish between the products.

7. Proving financial damages: Additionally, the TSB addressed the issue of compensation for damages, reiterating that it is necessary to prove the harm, the period during which the infringement occurred, its duration, and the resulting financial loss. In this case, the Court found that the economic report provided by the plaintiff lacked the necessary precision: it failed to clearly identify the actual damages claimed in the lawsuit and instead presented three hypothetical and contradictory scenarios, leaving it to the judge’s discretion to pick one. This was deemed inadmissible, as profits earned by the infringer must be clearly established rather than based on conjecture.

Conclusion

Infringements involving unfair competition and industrial property require strict standards of proof. Not everything that appears unfair actually is, making it essential to invest in solid evidentiary material before embarking on a lawsuit.