lawyer Dr. Lars Jaeschke 19/05/2015 | Guides – competition law | 224 Views Find out more:
Nickel free, farmer, technology, warning, jewelry
I. What is it?
The Federal Court ruled in its so-called. Nickel free-judgment that as “nickel-free” advertised jewelery actually completely must be “free of nickel” and also expressed the view that between a licensor and a trader, even though they do not offer the same kind of goods or services might exist a concrete competitive relationship. In the case decided is after the BGH such even before, because the offer “nickel-free” stainless steel chains through there complained jewelry dealer, the applicant can interfere in the marketing of their patent by the sublicense. Applicant in the proceedings was the owner of the exclusive right to use a European patent no. 2209924 on the “use of a biocompatible material made of precious metal with a martensitic surface layer for watches, watch parts and jewelry”. (BGH, judgment of 10.04.2014, Az .: I ZR 43/13 – nickel free)
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Lars Jaeschke
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Specialist Lawyer Intellectual Property, Trademark Law, Media Law, Copyright, Competition Law
I have received several warnings from online retailers by Bauer and Partner Rechtsanwälte GbR for NB Technology GmbH against, inter alia, be based on the present Supreme Court decision.
II. Concrete competitive relationship between online retailers and Patent marketers
Following this ruling, it will be a – for antitrust (UWG) claims against affected online retailer necessary – so-called “concrete competitive relationship” between the Abgemahnt online. dealers and the NB Technology GmbH can not deny, as long as the patent on which the NB Technology GmbH supports the warnings, is in force.
It is worth noting, however, that the Regional Court of Stuttgart would probably even out of a competitive relationship, if the patent of the other party would permanently revoked. The Farmer and Partners Attorneys at Law have submitted in one of the cases managed by me an order of LG Stuttgart from 14:01:15 (Ref .: 11 O 225/14) teilgeschwärzt, after which the LG performs:
“The question whether an effective patent law is, in this case should not be relevant. Taking into account the decision of the Supreme Court from 10.04.2014 (GRUR 2014, 1114 -. Nickel-free, para 33) should be decisive, whether the applicant has provided their expertise for the production of nickel-free steel for payment available. If that is the case, the defendant has provided in competition with the applicant. Even in this case, the sales success of the applicant with regard to the exploitation of their know-how from the successful sales of manufactured by transferring the know-how products depends. A stay of proceedings pursuant to § 148 ZPO is therefore not appropriate. “
Here the further development remains to be seen. Anyway, at present it can be assumed that between the NB Technology GmbH and Abgemahnt online retailers a concrete competitive relationship if this stainless steel jewelry containing nickel, as advertise “nickel free”.
III. Defenses from online retailers
. 1 It depends on the specific case of
In some of the present me warnings it says, from “secured documented offers” it follows that the Abgemahnt “without contractual partner / licensee” the NB Technology GmbH to be or have been too his offering on certain websites “a variety of stainless steel jewelry” and in this case apply these as “nickel-free”. This is anticompetitive. “Would have actually consisted of nickel-free material / exist” Even if the product was dealing with an infringement of the rights of NB Technology GmbH. In these cases, it seems therefore to be such that the NB technology is about even unclear what, if any violation of the law could be because it is not clear which violation is because now accused the Abgemahnt concretely: The anticompetitive Offer non- nickel-free stainless steel jewelry as nickel free or nickel-free stainless steel actually offering jewelry in violation of the European patent no. 2209924?
It can be m. E. well argue that satisfy Abmahner their primary burden of proof in such cases, in no way, because the alleged infringement of a technical protective right is something fundamentally different as unfair competition. This is against a patent infringement no “less” or “more”, it is then rather different behavior attacked and found possible in the room.
In a case managed by me has also referred Abgemahnt not even no non-nickel-free stainless steel jewelery as nickel-free, but only formulated “… steel … that is free of nickel covered with gold …”. The above “nickel-free” so referred only to the gold layer. For nickel content of the stainless steel of Abgemahnt has taken in this case, no statement. So it all depends on the individual case, like the preceding example shows.
The key may, for example, be, whether on the part of the NB Technology GmbH a mystery shopping was performed with subsequent material analysis at the Abgemahnt or if claims are asserted simply out of the blue. In each individual case should be checked repeatedly by counsel that the warning may be rejected because of vagueness or inconsistency or should.
. 2 Armed values appear regularly inflated
In the present me warnings is also alleged that the “there the highest court in favor” of the NB Technologie GmbH “clarified the facts” was “the same as the local” and it is a supposedly legitimate claim for damages in the amount from € 50000.00 placed in the room as a license analogy. Along with the scheduled omission in dispute of € 30,000.00 a total of € 80,000.00 would be € 1,752.90 Abmahnkosten “refund” to. Against payment of a “lump sum” in the amount of € 3,000.00 and deliver a “necessary here penalty clause declaration” but could the claims of the NB Technology GmbH are paid. In part, an amount of € 5000.00 is required, depending on where the deals were online.
Also, due to the high and me regularly significantly inflated the amount in dispute must be carefully considered on a case by case as best proceed.
. 3 European Patent no. EP-B-2209924 revoke
Once against the European Patent no. EP-B-2209924 four objections have been raised for lack of novelty and inventive step, the European Patent Office has decided in the hearing held on 11.04.2014, that the patent is revoked. The Law in front of me. Although Board has been brought against the decision of the cancellation has more points of contact for a defense against warnings from the patent. But it is important to know that Abgemahnt with the current revocation of the patent ie not automatically “on the safe side” are!
. 4 Opposition default summons?
If you have already obtained a court order, is no time to lose because against the payment order within two weeks of delivery objection may be raised, otherwise is issued a writ of execution. So Discuss immediately upon receipt of a court order with a specialist IP lawyer to discuss the opportunities and risks in your particular case.
. 5 Negative declaratory action?
As far as can be currently supported in one case, a so-called. Negative declaratory action before the Landgericht Bochum against NB Technologie GmbH that the many warnings abuse of rights within the meaning of § 8 para. 4 are UWG. In such a process is i.a. court to clarify whether the Abmahner pursue mostly irrelevant objectives and these appear as the real driving force and the dominant motif of warnings. Here an overall assessment must be made taking into account all the circumstances of the case including the process behavior. Misuse would u.U. then be assumed if the Abmahntätigkeit becomes independent, that is, they have no reasonable relation to the commercial activity of Abmahnenden and when viewed objectively, can be made to the prosecution of certain infringements of competition law is no significant economic interest other than the fees generate interest. If necessary, will make here in a case for some clarity, but this may take months and not automatically binding on other courts would have the LG Bochum.
. 6 Next steps in “your” case
Also, due to the high and Me regularly significantly inflated the amount in dispute must be decided from case to case, therefore, is how best to proceed. Modified – – Sometimes the delivery of an omission explanation can without acknowledging any legal obligation nevertheless legally come into question, in other cases, protective letters should also levying a negative declaration be deposited and so appears to be a feasible option. If necessary, can and counterclaims should be asserted.
Patent solutions that fit to “all cases”, there is not, but in many cases a successful defense against a warning appears possible, especially when not even a test purchase is then carried out at you.
You have also received such a warning? Then the first step is,
• to remain calm and
• To scan the specific case times by counsel
• In no case will the pre-formulated penalty clause declaration should be signed unchecked or required payments are made unchecked
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