Since it is clearly a rare and sensational exception that we Germans are hailed by the English, I tought it is a good idea to briefly talk about this.
Germany's Federal Supreme Court grants complementary protection under unfair competition law using two possible approaches:
- firstly, the offering of goods or services being imitations of the goods or services of a competitor in such a way that it results in an avoidable deceit on the trade origin of the specific goods and/or services is considered unfair (§4 Nr. 9 a) UWG),
- secondly, the offering of goods or services being imitations of the goods or services of a competitor in such a way that it expoloits or damages the valuation of the imitated goods or services is considered unfair (§4 Nr. 9 b) UWG).
For the particular case of design protection, it is required that the indifidual character results from design features (which should not be technically unavoidable). Furhter, the imitation of a product with competitive individual character is considered unfair only if particular circumstances are met, wherein a lower competitive individual character may be compensated by a higher degree of unfairness in the circumstances of the immitation and vice versa.
For the first approach, these particular circumstances result form the avoidable deceit on the trade origin of the goods, for which it is clearly reuqired that the relevant public is used to think about the origin of the products and to draw information of this origin from the design features.
For the second approach, these particular circumstances result form the exploitation of the valuation of the imitated product, which is possible only if the imitated product enjoys a certain appreciation and high profile in the perception of the relevant public, which needs to associate at least some positive properties with the product, resulting in particular from its quality, exclusivity, luxury or prestige value with the product.