In general, the German law against misappropriation (on
the grounds of unfair competition law), is an effective tool
against copying, especially in support of "classic"
design and copyright law. Now, Germany's Federal Supreme Court
has clarified that such protection against misappropriation does
not apply, by way of an exception, if the outer appearance of the
accused product results from an independent work of creation by a
designer who was not aware of the original.
In the case at hand, the defendant was accused for offering the
below table in Germany which was nearly identical to a table sold
by the claimant in Germany before the defendant's table came on
the market. The defendant argued that he had created the design of
the accused table independently, without knowing the claimant's
alleged original and even prior to it entering the German
The Federal Supreme Court, for the very first time, decided that
"copying" in terms of Section 4 No. 9 Act against Unfair
Competition requires that the designer of the attacked design must
have been aware of the original when producing the copy. If the
designer (bearing the related burden of proof) can demonstrate that
he did not know the original when creating his own design, the
owner of the original cannot claim rights (for cease-and-desist,
information, damages, etc.) provided by the German law against
In light of this new case law, much depends on whether the
defendant can claim to be the designer of the contested design.
Otherwise the Supreme Court's case law will not apply, given
that the Court explicitly and repeatedly focused on the
defendant's role and function as the attacked product's
designer (not: distributor, dealer, etc.). Consequently, only the
designer, not any other third party appears to be entitled to rely
on that defence, with the further consequence that the designer of
the contested design must distribute the product himself and cannot
employ the organisation and skills of others for the marketing.
These consequences under national unfair competition law appear
to differ from Article 19 (2) Sentence 2 Community Designs
Regulation (CDR), pursuant to which the contested use of an
unregistered Community design "shall not be deemed to result
from copying the protected design if it results from an independent
work of creation by a designer who may be reasonably thought not to
be familiar with the design made available to the public by the
holder." Although there is no decision on this point so far by
any Community design court, it appears to make sense to extend the
consequences of meeting the requirements of Article 19 (2) Sentence
2 CDR also to customers, licensees etc. of the designer of the
contested product. In other words: If the product can be traced
back to the designer who created it independently, no subsequent
act of use can be prohibited.
On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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