As in many other European countries, in Germany, companies may invoke protection under unfair competition rules against passing-off if their characteristic and well-known products are copied.
In practice, these rules are still very important, in particular, if there is no registered design right on which claims could be based. Even the possibility of basing claims on a non-registered Community design has not rendered the unfair competition rules against passing-off unnecessary.
On the contrary: in most court cases involving product copying or product piracy, the plaintiffs rely on unfair competition rules at least as a fall-back position or even as the main basis of their claims. One reason is that the non-registered Community design expires three years after the product has first been disclosed in public, while unfair competition claims, at least in Germany, can be asserted as long as the original product has not lost its character or ‘originality’ in the market.
Establishing the character or originality of a product is arguably the main threshold for being awarded a claim for passing-off under German unfair competition law. A product possesses originality if its design or other features are capable of indicating to the relevant public that it originates from a certain manufacturer. This is the acknowledged rule established and confirmed by many decisions of Germany’s Federal Supreme Court.
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passing-off, design, unfair competition