Imitation of jewellery design in court: Hanseatic Higher Regional Court Hamburg dismisses claim relating to necklaces

In a dispute over alleged imitations of designer jewellery, the Hanseatic Higher Regional Court Hamburg (Az. 15 U 43/24) has dismissed a claim by a fashion jewellery manufacturer seeking an injunction and damages in respect of imitation. The decision clarifies what is permissible in terms of competition law protection of product designs – and where the limits lie.

The plaintiff, a well-known manufacturer of fashion jewellery, had brought an action against the defendant – a company that sells similar pieces of jewellery via online platforms – alleging unfair imitation of her well-known "Geo-Cube" necklaces. The claim was based on the assertion that three chains offered by the defendant were virtually identical copies of her core models. The plaintiff relied on § 4 Nr. 3 UWG in conjunction with §§ 3, 8 UWG.

The Regional Court (LG) Hamburg had initially granted the claim in part. The Higher Regional Court (OLG) Hamburg has now overturned this judgment and dismissed the claim entirely.

The court did acknowledge in principle that the plaintiff's chains possess a certain competitive character – in particular through the characteristic combination of geometric elements, high-quality materials and distinctive symmetry in the design. However, this character was only moderately pronounced.

What was decisive for the Higher Regional Court (OLG) was the distinction between design concept and concrete implementation: The idea of threading geometric elements (cubes, square platelets, rhinestone rondelles) in alternating sequence on a chain and separating them with thin cylinders was not capable of protection. Only the specific combination and execution could potentially enjoy competition law protection.

What is required for competition law protection against imitation?

Furthermore, the defendant's chain models at issue were not virtually identical, but at most a recreative imitation. The Higher Regional Court (OLG) made it clear: Where the original has only average distinctive character and the imitation product is merely a recreative approximation, further circumstances – such as material origin confusion or inappropriate exploitation of reputation – would need to be present for a competition law violation to exist. These were absent in the present case.

In the view of the senate, the plaintiff failed to establish sufficiently that her chains stand out in a material way from the market environment or possess above-average recognition. The "prior disclosures" presented by the defendant – that is, similar products, some of which were already in commerce at the time of collision – were sufficient to raise doubts about enhanced distinctive character. In so doing, the court made clear that the plaintiff bears the burden of proof and assertion that these prior disclosures are either immaterial or inaccurate – which she failed to establish convincingly.

The Higher Regional Court (OLG) also rejected the argument of possible origin confusion (§ 4 Nr. 3 a) UWG): The clear price and quality differential of the products, sale through different channels (e.g. otto.de rather than jewellery shops) and obvious manufacturer marking ("tr.schmuck") spoke against any risk of goods confusion. Furthermore, the Higher Regional Court (OLG) also recognised no exploitation or impairment of the reputation of the plaintiff's jewellery under § 4 Nr. 3 b) UWG).

Conclusion and implications for legal practice

The judgment of the Higher Regional Court (OLG) Hamburg is a clear signal to product designers and brand manufacturers: Not every design concept is capable of protection, even if it has been successfully marketed. What is decisive for protection under the UWG is always the concrete form and the degree of distinctive character, supplemented by further unfair circumstances such as clear origin confusion.

For companies, this means: Those wishing to take action against alleged imitations must not only set out the infringement in detail, but also carefully analyse the market environment and be able to demonstrate that above-average recognition or a clear distance from other products exists.

Conversely, the judgment protects competitors from being held liable for mere design borrowing, provided they adhere to the general design concept and implement it independently. Protection against imitation thus remains an exceptional provision that has narrow prerequisites and only applies in clearly defined cases.

Companies operating in the highly competitive market for fashion and branded jewellery should not only design their products creatively, but also think early on about legally secure protection through design protection or trade mark registration – because one should not rely solely on competition law protection of performance.

The specialised legal practitioners at AVANTCORE, who specialise in intellectual property rights, are happy to assist you with questions about competition law protection of performance or protection through registered trade marks and designs.