Country: Germany
Tribunal: Landgericht Hamburg, Zivilkammer 8 (District Court of Hamburg, Civil Court 8)
Date: 3/12/03
Case No.: 308 O 591/03
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 claimants proved a date of first publication of November 2002. The defendant marketed their own three layer inflatable bed in Germany. The claimant sought an interlocutory injunction from the Hamburg Court. The Court ordered an injunction. The defendant appealed, stating that the design lacked novelty. They cited two earlier three layer beds, and an earlier-filed US patent number 6671910 (filed December 5, 2001 and published as application 20030101516 on June 5, 2003). One of the cited beds (shown below) was disclosed in a catalogue and sold in the Netherlands in early 2002, and then distributed at a trade fair in Cologne in September 2002.

Findings
The closest document (below) had been published by, at latest, the trade show in Cologne in September 2002 and it was therefore prior art. It showed all the essential features of the design in suit, differing only in immaterial details (CDR Art. 5(2)). The US patent application also gave a hint that the design disclosed in that application might have been made available before November 2002. The design in suit therefore lacked novelty and the injunction was discharged, leaving the defendants free to continue marketing. This case was appealed.