There is no unfair imitation by causing an avoidable deception of the buyer about the commercial origin of the light chains within the meaning of § 4 No.. 3 lit. a) UWG before.
District Court Düsseldorf 14c O 21/21 from 03.11.2022 – star lighting
…
Dismisses the action;.
The applicant is ordered to pay the costs.
The judgment is provisionally enforceable against security in
Height of 110 % of the amount to be enforced in each case.
T a t b e s t a n d
The plaintiff takes the defendant to cease and desist, Provision of information and accounting,
Determination of damages and reimbursement of warning costs plus interest
protection against imitation under competition law.
The applicant, their business purpose according to the extract from the commercial register (Plant
GDM 1) the im- and export of all kinds of goods, sells lighting equipment,
usually through large, nationwide retail chains, such as. the branches of
ALDI groups. In March 2019 offered the plaintiff to the B SE & Co. OHG (formerly: B GmbH &
Co. OHG, below briefly: B) a light chain with 15-pointed stars in red and
white coloring. The chain of lights was in the Advent season 2019 via the ALDI branches
distributed in an outer packaging, those with the trademark "Lightzone" of the B
was marked. On the bottom of the packaging was a reference to the
Plaintiff as responsible importer.
Plaintiff's chain of lights, these as an attachment GDM 2 with outer packaging to file
was enough, consists of ten stars, where the stars respectively 14 square and one
have a heptagonal prong and a heptagonal prong stump with a cable outlet,
as reproduced below:
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In the years that followed, the plaintiff offered B the fairy lights again, for them
Advent Season 2020 as. 25.000 piece and for the advent season 2021 as. 112.000 Piece (Facilities
GDM 10 and GDM 12). For the ALDI campaign week from 2. December 2021 was the
Fairy lights in the advertising brochure with a retail price of EUR 19,99 Applied, as
folgt:
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The defendant is a global production and procurement of plants and non-
Company specializing in food items for home and garden. It sells i.a. also
fairy lights.
For the offer season 2020 the defendant was awarded the contract by B and then delivered
the fairy lights of the contested embodiment, which are designed like from the
The complaint reproduced below and the – with outer packaging – on file
submitted Annex GDM 13 evident.
The plaintiff initially judged with reference to an unregistered right to which she was entitled
community design patent and the competitive uniqueness of their fairy lights
Wrote from 15.10.2020 an authorization request to the defendant (Annex GDM 14), the
the defendant with reference to the Moravian T3 model, Deco-Trend und Roemer-
Fengshui u.a. because of the lack of individual character of the supposed unregistered
Community design rejected (Annex GDM 15). The plaintiff then left
with letter dated 03.11.2020 dismiss the defendant (Annex GDM 16). The defendant pointed out
the warning back (Annex GDM 17). Finally, the plaintiff submitted by e-mail
from 07.01.2021 (Annex GDM 18) a draft lawsuit and demanded the defendant for the last time
to file a complaint and to pay the warning costs.
Now the defendant with a lawyer's letter 13.01.2021 a punishable one
Declaration of discontinuance limited to the 04.11.2022 hand over (Annex GDM 19).
With email from 28. January 2021 (Annex GDM 20) explained the plaintiff, the
Declaration of omission with the proviso to accept, that the time limit is not for advertising?,
offer- and sales activities in Germany apply. At the same time she pointed it out, that
a temporary cease-and-desist declaration reduces the risk of bid actions being repeated in
Germany based on § 4 No.. 3 UWG not to be omitted and insofar demanded one
Addition to the declaration of omission; she also requested the information that had not been provided.
In this respect, however, the parties could not subsequently come to an agreement (Attachments GDM 20
bis GDM 22).
The plaintiff continued to feel that her rights had been violated and therefore 01.03.2021 the
present lawsuit against the defendant. As far as the subsequent claims initially
asserted Europe-wide and given priority to an unregistered one
based on the Community design on its chain of lights, does she have the lawsuit in the
withdrawn at the last oral hearing. At their claimed
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She adheres to claims under competition law.
The plaintiff claims, the idea of a 15-pointed star for a chain of lights came from
your sales manager Mr. T2. The prototypes of the stars are mainly from Mr. T2 and
Mr T, who is responsible for product development and order support, unter
been developed taking into account the technical specifications of the B. Got the prototypes
through its Hong Kong branch by the Chinese manufacturer Haining
Hongguang Lighting Electric Co., Ltd. can be made and then with the production
commissioned the fairy lights. This is contract manufacturing, at which the to
Tools needed to make the fairy lights, especially the molds for the
Sterne, of the Hong Kong branch of the plaintiff and meanwhile herself
had been left. In addition, the Chinese manufacturer has compared to the
branch of the plaintiff an exclusive position for the EU (Annex GDM 24).
Finally, the information as the person responsible for the product is also included on the packaging
the import notice clearly, that they are the manufacturer i.S.d. UWG be. The Chinese
The manufacturer does not step towards the traffic addressed, the B only as a dealer in
apparition.
In the period from 25. to 29. October 2019 do they have the fairy lights in white color –
17.332 piece – and red color – 8.666 piece – delivered to the B in Germany, she over
their branches during the offer week 4. to 9. November 2019 sold to end customers.
Again they have the fairy lights in the week of action from the 2. December 2021 about the
ALDI Nord branches with a lot of 128.610 Can offer and sell pieces.
Eventually she'll fall 2022 as. 80.000 Piece about the branches of
retail chain LIDL.
Die Klägerin ist der Ansicht, that you are entitled to claims under fair competition law, because the
Defendant against the ban on unfair imitations by an unavoidable
deceit of origin.
Your fairy lights have competitive uniqueness due to the following design features
on:
(1) String of lights with ten stars,
(2) lined up at intervals, an alignment independent of the other stars
allow every 3D star in space,
(3) every T3 features 15 Pink, of which 14
(3.1) are markedly angular, as they only have four faces,
(3.2) are comparatively thin, by their height (as. 4,5 cm) about three times that
expansion of the base (as. 1,5 cm) corresponds and
(3.3) are grouped in groups of seven evenly distributed in a circle, that one
Mirror symmetry between the two groups results,
as can be seen from the following figure from the statement of defense:
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When looking in the direction of the axis, the design shows a uniform "beautiful" star appearance,
in which one group of seven points completely covers the other group; at others
Alignments caused the features 3 to 3.3 an irregular one, but still
filigree star optics, with about ten strongly pronounced ones at each position in space
perceive spikes. Overall, a varied orientation is possible, at the at
same line of sight no T3 the same as the other.
As far as the defendant with mere previous entries the competitive uniqueness of their
wanted to question the chain of lights, these are due to a lack of explanations on the market presence, not
relevant. From the treasury of forms reproduced below, its sufficient
market presence they deny, sit down - as she explains in detail - her chain of lights
by the number and shape of the points of the individual stars and other details
Feature (4) significantly:
(1) Moravian T3 light chain of the plaintiff
(17 four- and 8 triangular prongs) (14 four- and 1 seven-edged spikes)
(2) Plaintiff's Deco Trend chain of lights
(18 triangular prongs) (14 four- and 1 seven-edged spikes)
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(3) The plaintiff's Roemer Fengshui chain of lights
(11 or. 12 pentagonal points) (14 four- and 1 seven-edged spikes)
(4) HGD I GmbH chain of lights of the plaintiff
(13 hexagonal spikes) (14 four- and 1 seven-edged spikes)
Also with regard to what the defendant claims is now on the market
other products available (Attachments AR 12 to AR 14) there is a lack of explanations about them
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Market importance or duration of any market presence and is immediately recognizable,
that these did not have the essential design patterns of the complaint model:
Nanu-Nana Einkaufs- Fisch & U GbR H GmbH
and H GmbH
(Annex AR 12) (Annex AR 13) (Annex AR 14)
Since you are selling your fairy lights with a quantity of approx. 26.000 in 2019 and 128.610 piece in
2021 distributed via the B, have the necessary market presence. Also
Seasonal items easily have a competitive character that goes beyond the season
zu.
The contested embodiment is a direct imitation
her fairy lights, all the essential design features, but also dimensions and
Take over the proportions of the stars and the detachability of the spikes identically,
which is why knowledge of the original is to be assumed. Speak for an imitation
also adopting the essential design features of the packaging, by name
their dimension, the size and position of the viewing window and the positioning of the
product photos, those about the specifications, that B do as part of their style guide, clearly
go out.
Due to the almost identical imitation, there is a misrepresentation of origin. This is
for the defendant through a different product design and through another
Design of the outer packaging also taking into account the style guide without
further could have been avoided. The only one to be found on the bottom of the packaging
Manufacturer information is not used in the product presentation in advertising and on the shelf
perceived, especially since the traffic anyway at the trademark "Lightzone"
orient. In the offer- and employment situation is for the traffic addressed
due to the mere product design or. Not bearing the manufacturer's label
recognizable. Due to the rather low-priced product segment is of a small
to pay attention to traffic, so that the fairy lights from the mentioned
Traffic would be acquired without major examination and employment. Be there
target groups of the public aware, that those offered and distributed by B
products would not be manufactured by B itself, for which also the respective manufacturer's note
the bottom of the outer packaging speak as well as the fact, that it is common
deal with weekly offers, which would no longer be delivered.
The risk of repetition is not due to the time limit, penalty rate
declaration of discontinuance dated 13.01.2021 omitted, because this persists, as long as that
original product on the market; they have their product in Advent 2021 again via the B
expelled and will be in the fall 2022 distribute via LIDL. At the competitive
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There are no fixed time limits for performance protection. On a temporary basis
She does not have to get involved in eliminating the risk of repetition.
The plaintiff applies for the withdrawal of the design patent claims
last,
1.
order the defendant, to refrain, in the Federal Republic of Germany
commercial traffic light chains with white or red stars of the following
to offer the displayed design, to be offered, to place on the market and in
to bring traffic:
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2.
of the defendants for each case of infringement of the under 1. for the defendant
pronounced conviction, a fine of up to EUR 250.000 or orderly detention
they bother, whereby the detention in individual cases up to six months and in total up to
can amount to two years and is to be carried out at their respective managing directors;
3.
determine, that the defendant has committed, to compensate the plaintiff for all damages,
the this through the below 1. mentioned acts in the Federal Republic of Germany
has arisen and will still arise;
4.
order the defendant, to provide the plaintiff with information and to submit an invoice
the scope of the under 1. mentioned actions in the Federal Republic of Germany
Submission of an orderly, index broken down by calendar quarters
information about
a) Names and addresses of the commercial offer recipients, client and
customer,
b) Quantities of the offered and delivered goods,
c) the offered and agreed prices,
d) the sales achieved,
and) der betriebenen Werbung, aufgeschlüsselt nach Werbeträgern, their circulations,
Distribution periods and areas,
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f) the costs broken down by each cost factor and the achieved
Profit;
5.
order the defendant, to the plaintiff EUR 1.973,90 plus interest of five
Percentage points above the respective base interest rate since 02.04.2021 to pay.
The defendant,
dismiss the action.
The defendant contends, the action is partially inadmissible. In terms of
Claiming the pre-court legal costs is missing to the plaintiff
need for legal protection, since the defendant had already declared itself ready to pay. The
Offer from 13.01.2021 persist.
There are also no claims under unfair competition law. A claim for injunctive relief
already taking into account the cease-and-desist declaration she submitted (Plant
GDM 19) nicht in Betracht, as this could potentially be a risk of repetition
cleaned up. The limitation does not conflict with this, as a fair trade law
Protection would not be longer than the protection from an unregistered
Community Design. However, there is no claim anyway
imitation protection.
Because the plaintiff is - as can be seen from her presentation and the findings on
Prior publication of the initially claimed unregistered
Community design patent - certainly not the manufacturer of the original. Much more
the T3 was developed in China by third parties and the plaintiff only had it there -
apparently through the Canton Fair - bought and imported for the B. This confirms
Printed on the outer packaging, on which it is undisputedly read "Imported by". be there
also not clear, ob die Haining Hongguang Lighting Electric Co., Ltd. original manufacturer.
The plaintiff has an exclusive right to sell or a special collection
not stated. Since the plaintiff was only named as the importer on the packaging, come
for traffic at most into consideration, that ALDI would brand the product and
also vouch for the quality of the goods with its image.
The plaintiff's chain of lights also lacks competitive character. The
The plaintiff's reference to the presentation on design law individuality is left open,
which justifies an indication of origin. The traffic also organizes the chain of lights
not assigned to any particular manufacturer, since it is a matter of "discount goods"., at the the
consumers don't care, whether it came from a particular company
and you, as the applicant rightly claims, without greater trial in knowledge
acquire, that ALDI itself does not manufacture them. Changing importers for ALDI products
be the rule (Examples in appendices AR 15 and AR 16), what the consumer
known. This one knows, that these are “while stocks last” offers,
which excludes the expectation, to be able to purchase them again in the following season. if im
individual case not to be taken into account, a buyer in the following season the same product
want to acquire, he is only concerned with the product, not its manufacturer. So far the
claimant, that she is now importing the chain of lights for LIDL, kick her too
in place of the previous importer there, which also proves, that it dem
Consumers don't care about the origin.
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The chain of lights is also not sufficiently different from the products of the
market environment and be of the Chinese pattern CN #####/#### S (Annex AR 4) and
from the nearly identical German pattern DE 40 2019 000 256-0001 (Annex AR 5) races
to distinguish. Fairy lights based on these patterns are i.a. about the
Hardware store chain OBI (HDG-T3, Annex AR 6) and in the year 2020 and 2021 via LIDL (Facilities
AR 17, 18a and 18b) been expelled in Germany.
At the time of offering their attacked product in Advent 2020 would therefore
no inconveniences (more) present, which is a competitive quirk of the string of lights
Klägerin (at all) could have justified. Meanwhile, an identical
Fairy lights also from the well-known Nanu-Nana Shopping- and H GmbH manufactured
and offered on the Internet and in its several hundred branches (Annex AR 12). As well
will she from the fish & U GbR (Annex AR 13) and from H GmbH (Annex AR 14)
vertrieben; Finally, there are other offers under the “Spetebo” brand, e.g. on Amazon
(Annex AR 19). The competitive idiosyncrasy - if it ever existed - is
in any case omitted.
Their product is also not an identical imitation of the plaintiff's chain of lights, since it is
especially in the area of the cable feed, that instead of one
Zackens with a truncated tip there is a conspicuous cylindrical stalk, how out
shown in the following detail drawing. Moreover, the chain of lights is the defendant's
shorter.
Fairy lights of the plaintiff Fairy lights of the defendant
In any case, there could be no deception of origin, since it is at a
certain notoriety of the plaintiff's chain of lights even with a - disputed -
nationwide distribution 26.000 piece per year 2019 given the above 2300 ALDI branches
missing in Germany. That the applicant 128.610 fairy lights per year 2021
actually delivered to B and that this is completely and comprehensively included in the sale
had arrived, deny them.
A deception of origin in the employment situation is also ruled out for other reasons.
The designation "Lightzone", which – more descriptively – refer to a product category,
was specified by B, as was the design of the outer packaging. The
„Style Guide: Lightzone“ (Annex AR 21) tight specifications; off the specifications they have
used their leeway. Mere "memories or associations" of the older product
weren't enough, to justify a deception of origin. Eventually become one
deception of origin of the consumer, if it matters to him in individual cases, ein
product of the same line as last year, thereby excluded, that the
Defendant on the outer packaging and on a label attached to the light chain
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be clearly stated, as reproduced below:
Outer packaging label on the light chain
Because of the other thing- and dispute will be referred to as submitted by the parties
Written documents and attachments, the minutes of the oral hearing 29.03.2022 and
20.09.2022 as well as the factual statements in the following
reasons for the decision.
E n t s c h e i d u n g s g r ü n d e
I.
The lawsuit is admissible. In particular, the plaintiff does not lack the need for legal protection in
With regard to the assertion of pre-judicial legal costs, since the
Defendant would have already agreed to pay. The offer from 13.01.2021 contains a
Comparative offer with a compensation clause in paragraph 5. The applicant has this offer
not accepted and it is also not apparent, that the defendant made the payment of
warning costs regardless of the further proposed regulations.
II.
The plaintiff has no claims from competitive imitation protection
§§ 8 Abs. 1, Abs. 3 No.. 1, 9 Set 1, 3 Abs. 1, 4 No.. 3 lit. a) UWG to. There is no unfairness
Imitation by causing an avoidable deception of the buyers about the
operational origin of the light chains within the meaning of § 4 No.. 3 lit. a) UWG before.
In detail:
1.
The Chamber assumes in favor of the plaintiff, that this manufacturer of her
marketed fairy lights. Then she is a competitor of the defendant according to §§ 2 Abs. 1
No.. 4, 8 Abs. 3 No.. 1 UWG authorized to act.
2.
With the commercial offering and placing on the market of the attacked light chains
the defendant was also dealing with business activities within the meaning of § 2 Abs. 1 No..
2 UWG.
3.
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However, there was no avoidable deception of origin within the meaning of § 4 No.. 3 lit. a) UWG before.
Gemäß § 4 No.. 3 lit. a) UWG acts unfairly, who offers goods, which is an imitation of
goods of a competitor, if he thereby an avoidable deception of
Brings about buyers via the operational origin.
The distribution of a counterfeit product can be anti-competitive, if that
counterfeit product has competitive individuality and special circumstances
join, which make the imitation appear unfair. That's how it is, if the
imitation is appropriate, to create an illusion of origin and the imitator
fails to take suitable and reasonable measures to avoid deception of origin.
There is an interaction between the degree of competitive individuality, the
manner and intensity of the takeover and the particular competitive
circumstances, so that at a greater competitive idiosyncrasy and degree
lower requirements are to be placed on the special circumstances of the takeover, the
justify the anti-competitiveness of the imitation and vice versa (st. Rspr., vgl. BGH,
Urt. in. 01.07.2021, I ZR 137/20, Rn. 15 – coffee maker; BGH, Urt. in. 20.09.2018, The. I ZR
71/17, Rn. 11 – industrial sewing machines; BGH, Urt. in. 16.11.2017, The. I ZR 91/16, Rn. 13 –
Handfugenpistole).
a.
The plaintiff's chain of lights does not have the necessary competitive character,
because it is a "mass product"., in which the traffic does not care about the origin
from a specific company.
aa.
A product has a competitive character, if its concrete embodiment
or certain characteristics are suitable, the target public on his
operational origin or its peculiarities. Decisive for the
Determining the competitive uniqueness is the overall impression of the imitated
product. This can also be determined or co-determined by design features
werden, not taken in isolation, but are suitable in their interaction, im
traffic to the origin of the counterfeit product from a particular company
to point out (st. Rspr., vgl. BGH, Urt. in. 01.07.2021, I ZR 137/20, Rn. 20 – coffee maker;
BGH, Urt. in. 16.11.2017, The. I ZR 91/16, Rn. 14 – Handfugenpistole; BGH, Urt. in.
15.12.2016, The. I ZR 197/15, Rn. 19 – ground plugs).
It is not important for the competitive character, that the addressed
circles of the public know the manufacturer of the goods by name; but is required, that she
assume, the goods come from a specific manufacturer, whatever this one
may be called, or was placed on the market by an affiliated company
worden (BGH, Urt. in. 16.11.2017, The. I ZR 91/16, Rn. 14 – Handfugenpistole).
The novelty of the design is just as irrelevant, like on it, whether to design
individual features used in a product are original. Entscheidend ist vielmehr, ob
in their combination they give the products a character, the one addressed
Traffic a conclusion about the operational origin or its peculiarities
allows (OLG Dusseldorf, Urt. in. 22.11.2018, The. I-15 U 74/17, Rn. 60, quoted from juris;
OLG Dusseldorf, Urt. in. 31.1.2012, The. I-20 U 175/11, Rn. 111 – Tablet-PC, quoted from juris).
A high profile in traffic is not a prerequisite; a high level of awareness
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However, the product can indicate the existence of competitive uniqueness or its degree
increase (BGH, Urt. in. 28.05.2009, The. I ZR 124/06, Rn. 37 – LIKEaBIKE; OLG Dusseldorf,
Urt. in. 22.11.2018, The. I-15 U 74/17, Rn. 61, quoted from juris).
In particular, there is a competitive character, if the product changes due to
special design features from other products in the market environment, that
the traffic assigns it to a specific manufacturer (BGH, Urt. in. 24.01.2013, The. I ZR
136/11, Rn. 24 – shelving system). A product, on the other hand, has no competitive character,
if the target audience is the defining design features of the product
not (more) assigned to a specific manufacturer or a specific product (BGH, Urt. in.
16.11.2017, The. I ZR 91/16, Rn. 14 – Handfugenpistole). To that extent it is necessary, dass der
Traffic - unlike this is the case with "everyday products" or "dozen goods" - on
values and is used to the operational origin of the product, from certain
characteristics to infer the operational origin (BGH, Urt. in. 15.12.2016, The. I ZR
197/15, Rn. 38 – ground plugs; BGH, Urt. in. 22.03.2012, The. I ZR 21/11, Rn. 34 –
Sandmalkasten; BGH, Urt. in. 02.04.2009, The. I ZR 199/06, Rn. 10 – boning knife; BGH,
Urt. in. 21.09.2006, The. I ZR 270/03,Rn. 26 – stepladders; BGH, Urt. in. 03.05.1968, The. I ZR
66/66, Rn. 41 – powder container, quoted from juris). Because the function of (unwritten)
Constituent element of competitive individuality consists in it, the protection against
limit imitation to such performance results, those under consideration
the interests of competitors, the consumer, the other market participants and the
are worthy of protection (vgl. Köhler in: Koehler/Bornkamm/Feddersen, UWG, 40.
Ed. 2022, § 4 Rn. 3.30).
The target groups here are the end consumers, who buy the fairy lights.
Chamber members are able, resulting in particular from the design
resulting conceptions of origin of this circle of traffic from their own expertise and
to judge experience, because they themselves are part of the target public and
moreover, as members of a special chamber for competition matters relating to special
have expertise, which enables them, the ideas of origin of the whole
target group of people with regard to the disputed products
judge.
bb.
Taking these principles into account, the plaintiff's chain of lights does not come
competitive peculiarity.
Although the plaintiff has fulfilled its burden of proof and has to the product and
its characteristics, which are intended to justify its competitive uniqueness, present concretely
and illustrated with pictures. In this respect, the facts
Figures reproduced and the classification of features referred to. At the
There were also no objections to entering the market, the emergence of a
competitive nature of the fairy lights with their ten stars, the one combination
from 14 square ones, mirror-symmetrical spikes and a heptagonal one
Have spikes and a seven-edged spiked stump, opposed.
Nevertheless, the fairy lights were not able to achieve any competitive character, weil es
is a "common product"., where the traffic doesn't matter to the
operational origin. The light chain is a rather low-priced one, seasonal
decorative items, which was sold by the discounter ALDI. With a product like this
stands in the foreground for traffic, purchase a product at a low price,
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that only temporarily (seasonal) is being used, subject to fashion and perhaps already in
replaced by another decorative item the following year. It is therefore not necessary
highlighted quality, but primarily of a pleasing design and a not too
high price. The chain of lights is therefore - as the plaintiff also assumes - without larger
Examination and employment obtained. For traffic, who assumes, that the
necessary product safety and a minimum level of quality by the purchasing department
of the discounter are ensured, is irrelevant, where the product comes from. So he will
accept though, that the product - like such products often - probably in
Far East was produced, find out about the origin from a specific company
make no introduction. This also goes hand in hand, that the packaging is a hint
points to the importer, but this is entirely subordinate, because the origin of the traffic
regularly not interested. Rather, the trademark of the discounter and
that fits into the line of products sold under this trademark
presentation, which traffic also goes to the discounter and not to the manufacturer of the
assigned to the respective product.
In this respect, the consumer also knows, that discounters are not just a few suppliers
have, but only achieve low prices in purchasing with changing contractual partners
and pass it on to the end customer. The usual changes in suppliers are evident
also in it, that the plaintiff has now also placed its product with the discounter LIDL
and replaced the supplier there, while 2020 the defendant's chain of lights the product
replaced the plaintiff at the discounter ALDI, but after that the plaintiff delivered again.
The defendant rightly points this out, that with the "while supplies last" offers
seasonal article at the discounter, in principle, the expectation is excluded,
purchase the same product in the following season. If it occurs to him exceptionally
an, he will check the product conformity with increased attention and the
notice differences, even then it doesn't depend on the manufacturer, but just the
Product compliance matters.
b.
Does the traffic - as here - attach no importance to the commercial origin of a product,
it does not acquire any competitive character and a deception about the origin can therefore
not take place.
III.
The procedural ancillary decisions follow from §§ 91 Abs. 1, 269 Abs. 3 Set 2, 709
Code of Civil Procedure.
The amount in dispute will be determined until the hearing on 20.09.2022 on 70.000 € and
then up to 65.000 Set €.
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