I. What is it?
The Federal Court in its so-called . Nickel free-judgment (BGH, judgment of 04.10.2014, Az .: I ZR 43/13 – nickel free) decided that as “nickel-free” jewelry advertised actually completely “free of nickel must be “and also expressed the view that between a licensor and a distributor also can exist a concrete competitive relationship if they do not offer the same kind of goods or services. 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 higher than the “use of a biocompatible material made of precious metal with a martensitic surface layer for watches, watch parts and jewelry”.
me several warnings from online retailers ago by Bauer and Partner Rechtsanwälte GbR for NB Technology GmbH, which, 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 Technologie GmbH the warnings based in effect.
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 lawyers have submitted a available from the LG Stuttgart 14:01:15 (Ref .: 11 O 225/14) in a teilgeschwärzt of advised cases, after which the LG performs:
“The question of 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 jewelery which contain nickel as “nickel-free” apply.
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 be or to have been offering on certain websites “a variety of stainless steel jewelry” and in this case to apply this as a “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 itself is in the dark about what, if any violation of the law might be, because it remains unclear which violation is because now accused the Abgemahnt concrete: 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 take the view that satisfy the 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 one of my supervised case, the Abgemahnt also referred 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. It always depends on the individual case such prominent example.
The key may, for example, be, whether on the part of the NB Technology GmbH a test purchase was carried out 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 if the warning or due to uncertainty . inconsistency may be rejected or should.
. 2 Armed values appear regularly inflated
In the present me warnings is said also that “there 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 of € 50,000.00 provided 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 € 5,000.00 is also 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. The amounts in dispute referred to by the NB Technology GmbH often appear greatly exaggerated.
. 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 complaints were brought against the decision of revocation provides 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 therefore not automatically “on the safe side” are!
. 4 Objection to payment order?
If you have already received a payment order is no time to lose, because against the payment order within two weeks of delivery contradiction may be charged, otherwise is issued a writ of execution. So Discuss immediately upon receipt of a court order with a specialist for intellectual property law to the opportunities and risks in your specific case to discuss.
. 5 Negative declaratory action?
As far as can be currently a so-called. Negative declaratory action before the Landgericht Bochum against NB Technology GmbH based in a case that the many warnings abuse of rights within the meaning of § 8 para. 4 UWG had. 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, is the LG Bochum make here in a case for some clarity, but this may take months and not automatically binding on other courts would.
6 Next steps in “your” event
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, the more so if not even a test purchase was made with you.
Do you also have such a receive a warning? Then the first step is,
- to remain calm and to let
- Check the particular case professional counsel.
- In no event shall the preformulated penalty clause declaration should unchecked be signed or the required payments are made without verification.
For the concrete nationwide advice in individual cases you can contact Mr. Lawyer Dr. Jaeschke (specialist in Intellectual Property Law ) under telephone 0641 68681160 or by e-mail at jaeschke@ipjaeschke.de .
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