Intellectual Property Law

Waldemar LINK GmbH & Co. KG brought suit against the competitor based on unfair competition. Both first instance courts (LG and OLG Hamburg) dismissed the claims.

While the SPII product enjoyed "wettbewerbliche Eigenart" (I will not try to translate this concept), this could not form the basis for an injunction given the technical necessity of the form (para. 22).

Post-sale confusion was also ruled out under the particular circumstances; a surgeon is expected to carefully plan an operationand is highly unlikely to just take the "wrong" prosthesis simply because it looks similar (I certainly hope so! Those interested can find a guide on how to implant the replacement here - don't do this at home, lawyers.).

But, and here it gets interesting, the BGH held that (para. 51):

Da der gute Ruf des Produkts der Klägerin auf dessen Qualität beruht, wird er unangemessen beeinträchtigt, wenn ein nahezu identisches Produkt nicht denselben oder jedenfalls im Wesentlichen denselben Qualitätsmaßstäben genügt, die der Originalhersteller durch seine Ware gesetzt hat.

Because the good reputation of the plaintiff's product is based on its quality it is inappropriately impaired when an almost identical product does not meet the same, or at least essentially the same, quality standards that the manufacturer of the original product has set by his product.

In other words: you can market product that looks very similar to the market leader, but only if it in fact is very similar (quality-wise) to the market leader. A very interesting development, and it reminds me of the thesis advanced by Roland Mallinson (Taylor Wessing) and Andreas Lubberger (Lubberger - Lehment) at the MARQUES Conference in Berlin that if a look-alike creates an association with a market leader, this is a form of comparative marketing and as such only permissible if the products are indeed comparable - also quality wise. And suddenly, courts have to go on a fact finding mission regarding the quality of look-alikes...