In Germany, as in many other European jurisdictions, claimants may not only rely on registered design rights in order to attack pirated or otherwise copied products.
German courts have established a wide body of case law shaping the unfair competition claim of passing off, which has proved to be a remarkably important ‘last resort’ for companies who—for one reason or another—do not possess the necessary design rights in order to fend off competitors.
In principle, the manufacturer of a product may have a claim for passing off if his product is sufficiently ‘original’ in the sense that it possesses distinctive characteristics that set it apart from competitors’ products in the same area; and if there are special circumstances that justify the verdict that the distribution of the attacked product constitutes unfair competition.
The second pre-requisite can be established if the design of the attacked product is so close to the original that there is the imminent risk that the consumer will be unavoidably deceived about its origin.
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Federal Supreme Court, Passing off, Trademarks, Court of Appeal
