X5 and CEO – Are they still riding side by side?

Design fetishists and car maniacs will certainly remember those puzzling news from Munich and Turin, with the Munich District Court (Landgericht München I) confirming a claim for design infringement raised by the famous – Munich based (!) – car factory BMW against the Chinese version of its X5 model called CEO, while the Turin District Court (Tribunale di Torino) had dismissed the very same claim against the very same contested design a few months earlier. The truth is that both courts addressed validity but draw deviating conclusions. While the Italian court found the ML novelty-destroying over the X5, the Munich judges did not. The defendant – the German importer – appealed to the Munich Appeal Court (Oberlandesgericht München). After a hearing on May 14, 2009, it took quite a while for the court but now the dismissal of the appeal has become public. Good news for BMW: X5 apparently does not infringe ML but CEO still infringes X5!
Since the first generation of the X5 is protected only by German national and corresponding Hague designs (not: Community designs), the Munich Appeal Court couldn’t render a Europe-wide ban on the CEO. Hence, BMW will have to go on a country-by-country ride and attack the CEO wherever a judge will be prepared to grant injunctive relief …