Unfair exploitation of esteem of a luxury watch

The Higher Regional Court based in Frankfurt, Germany, decided on the competitive imitation protection of a luxury watch, which is shown in the following:

plaintiff’s luxury watch

The watch shown above is produced and distributed by the plaintiff in Germany. A competitor advertised a watch which was quite similar to the plaintiff’s watch. The defendant’s watch is shown in the following:

defendant’s similar watch

The Higher Regional Court Frankfurt confirmed the first instance decision by the Regional Court, according to which the luxury watch a) has a competitive originality, b) is not weakened by third products and c) the defendant’s watch is an anti-competitive identical copy.

  1. In this connection, the Higher Regional Court stated that the plaintiff’s luxury watch was quite elegant and had an overall impression which causes the impression of the housing and wristband being one single piece. The plaintiff´s watch therefore has an average competitive originality.
  1. The Higher Regional Court confirmed the Regional Court’s decision that the competitive originality of the plaintiff’s luxury watch is not weakened or does not fall away by pre-known designs. In this connection, the defendant did not submit reasons or proof. The fact that the competitive originality with respect to pre-known designs does not exist or exists to a limited extent, only, would have had to be demonstrated or substantiated with proof.

The decreasing amount of sold watches of the plaintiff, which are subject of the dispute, did not have any negative influence on the competitive originality. The principle applies that a competitive originality falls away when the characterizing design features of the original version have become common property, for example due to various copies. However, in terms of copies of jewelry or watches, one can assume at any time that the manufacturer of the original has commenced distribution again.

  1. Only when looking more closely and directly comparing the two watches can the public recognize differences. Without this direct comparison, the defendant’s watch is a nearly identical copy.

As for the facts of a deception of origin, there was still a certain familiarity at the time of the infringement action and at the time of the last oral proceeding, the Higher Regional Court confirmed the facts of an unfair exploitation of the esteem according to § 4 no. 3 lit.b German Act Against Unfair Competition.

Higher Regional Court of Frankfurt, Case number: 6 U 233/16

June  18, 2020
Vanessa Bockhorni
Patent Attorney