Too Like Likeabike!

I am grateful to my partner (and fellow beard wearer) Felix Rummler, of our German office, for the following summary.

The Federal High Court (the Bundesgerichthof or "BGH") has recently, in its "LIKEaBIKE" decision I ZR 124/06, taken the opportunity to illustrate some principles of the unfair competition prohibition on close imitation.

The case was concerned with a copied product consisting of a ride-on wooden vehicle for infants, resembling a bicycle. The original design had been registered back in 1997 (as International Design DM 040209), and the plaintiff later developed a "mountain bike" version which was the subject of the infringement action. The design of the product is characterised among other things by the streamlined appearance of the timber frame as well as a laminar steering wheel fork with an opening for the timber frame. These characteristics were also present - with slight modifications - in the imitation.

The Court held that imitation of a product is adverse to competition if the product has a "competitive characteristic" and the imitation is unfair. In order to have a competitive characteristic, the product must show special characteristics, which refer to its operational origin or characteristics of the product. However technically necessary characteristics cannot justify a competitive characteristic because they cannot be omitted without arriving at something technically inferior.

The imitation of a product with competitive characteristic is competition-adverse, if unfair circumstances are additionally present, for example if no suitable reasonable measures are taken in order to prevent possible confusion of the products as regards origin or characteristics.

In the infringement action the defendant pointed out the fact that some of these characteristics - in particular the organization of the fork - were technically necessary and could therefore be taken. The BGH rejected this. The characteristics were technically motivated, but the technical requirements did not dictate this particular physical arrangement. On the contrary, technically equivalent solutions existed, by use of which the danger of the deception over the origin of the product could have been avoided in a reasonable way.

This decision highlights the continuing importance of unfair competition protection for products in the civil law world.