Peculiar Shoes

Can shoes enjoy protection against unfair copying under competition law? The Higher Regional Court (OLG) Frankfurt a.M. had to decide whether a ladies' pump with a platform sole and a "snub-nose-shaped" shoe toe possesses distinctive character in competition law and under what conditions the imitation of such a shoe constitutes unfair and avoidable origin confusion.

A well-known shoe manufacturer has been distributing platform pumps in various exterior colours since 2009. When a competitor brings several ladies' pumps with very similar features onto the market in the autumn of 2011, the shoe manufacturer believes that his performance protection rights under competition law regarding his shoes are infringed by the competitor's new product series and demands that the activity be ceased, that information be provided and claims for damages.

The shoe manufacturer relied in particular on the pink-coloured inner lining of the pumps, the approximately 11 cm high stiletto heel as well as the presence of a very striking shoe toe, which appears to resemble a "snub nose", as characteristics of the pumps which, in his view, impart distinctive character in competition law to his own shoe models.

By contrast, the competitor argued that the products of the other party merely reproduced the existing range of forms and therefore had not established themselves as proof of origin. Furthermore, his products exhibited design differences from those of the claimant and were provided with accessory details such as rhinestones or a floral replica, which clearly distinguished his products from those of the claimant.

Decision of the Court

The OLG Frankfurt am Main decided by judgment of 03.04.2014 – Az. 6 U 276/12that a shoe possesses the distinctive character in competition law required for protection against unfair copying if, on the basis of its design characteristics, it stands out from the mass of comparable products. In the present dispute, this was affirmed for the ladies' pump with platform sole and "snub-nose-shaped" shoe toe.

Even if one were to apply a stricter standard to the distinctive character in competition law of the ladies' pump because it is a fashion article and if one therefore demands particularly original design, distinctive character in competition law could be attributed to the claimant's shoe because it exhibits design characteristics that cause it to stand out from the mass of comparable products in its overall impression and permit the conclusion that it originates from a specific business source. In particular, the special characteristics of the shoe mentioned above and cited by the claimant give it – according to the court – an overall impression that indicates origin.

According to the court's findings, the attacked models constituted imitations of the original pump, as these models adopted all origin-indicating characteristics of the claimant's product and merely added insignificant details without altering the overall impression. For instance, the affixed rhinestones and the affixed flowers would merely be understood as decorations of the basic model.

In the court's view, the imitation of such a shoe constitutes an accusation of unfair and avoidable origin confusion if the characteristics which determine the distinctive character in competition law are adopted almost identically and further attendant circumstances permit the conclusion that the manufacturer of the attacked model deliberately approximated itself to the original product.

The OLG Frankfurt a.M. did not allow an appeal to the BGH.

Conclusion

In principle, protection against unfair copying under competition law can exist for specific shoe models with special characteristics which indicate to the addressed public their business origin. When shoes are imitated almost identically, only minor requirements are to be placed on further competitive circumstances. The danger of origin confusion is created merely by the adoption of all essential design characteristics of a shoe, which can only be counteracted by suitable and reasonable measures.