Country: Germany
Tribunal: Landgericht Hamburg, Zivilkammer 8 (District Court of Hamburg, Civil Court 8)
Date: 26/11/03
Case No.: 308 O 564/03
Parties: --
Design: --
Citation(s): --
Author: David Musker, R G C Jenkins & Co

Facts
The case concerned an interlocutory injunction under an Unregistered Community Design for a three layer inflatable bed. From February 2003, the claimant (a UK company) had a licence from a Spanish company to supply the German market. The defendant marketed their own three layer inflatable bed in Germany from Summer 2003. The claimant sought an interlocutory injunction from the Hamburg Court. The Court ordered an injunction. The defendant appealed, stating that the design was dictated by function, and lacked individual character. The defendant cited several prior air beds. These had one or two layers, but none had three layers.

Findings
The Court held that the claimant had the right to bring action, and that there was unregistered design right in the features of shape, specifically the three layers, the lowest one broader than the others, and in the proportions (length, width and height) and the gaps between the layers. First publication had been proved by the television broadcast of February 2003 and might existed as far back as November 2002. Since that was less than three years beforehand, the exact date did not matter. The prior art showed multiple different shapes, so the design freedom was such that individual character was present. The presence of multiple different shapes in the prior art also indicated that the design was not dictated by function. The surface pattern was the only difference between the design and the infringement. They created the same overall impression, and copying could be inferred – the burden shifted to the defendant under CDR Art. 19(2). Infringement was found and the injunction was upheld.