Imitation of luxury handbags

The Higher Regional Court (OLG) Cologne had to decide whether a handbag constituted an unfair imitation of the "Le Pliage" model by manufacturer Longchamp. A corresponding action in France had previously been dismissed by the Court of Cassation (Cour de Cassation) in Paris.

The basis of the injunctive proceedings in Cologne involved various features which, whilst known, were in the view of the manufacturer combined individually and with a recognition effect. The foldability of the handbag in combination with the other known design elements (material, rounded flap, handles made of embossed leather, trim pieces) would establish a distinctive character which would allow conclusion as to its manufacture by this producer. All individual features of the handbag in question are derived from the known repertoire of shapes of conventional bags.

The court's decision

The prior knowledge of the individual features does not preclude the existence ofcompetitivedistinctive character as evidenced by the judgment of the Higher Regional Court (OLG) Cologne of 07.03.2014 (Az. 6 U 160/13). What was decisive was the fact that the combination of the features led to a new and unique design. The material and colour contrasts (nylon/leather) and the arrangement as well as shaping of the individual leather elements establish an overall impression which allows conclusion as to a specific origin – namely from the Longchamp house. This reputation was further supported by the high sales and turnover figures in Germany combined with corresponding press coverage.

Against this background, the handbag in question was an imitation to be prohibited. The fact that this was not foldable unlike the original handbag does not, according to the court's reasoning, prevent this finding, because this is not externally discernible. A deception as to origin is likewise not ruled out by the designation with the term "Hexagona" because the relevant sector understands the unknown designation merely as the name of the model and not as an indication of its origin.

The judgment of the French court does not stand in the way of the different decision in Germany because German imitation protection falls outside the European Directive on Unfair Commercial Practices. Furthermore, the parties to the proceedings involved were not identical. In Germany, it was not the manufacturer of the imitated handbag who was sued, but rather a retailer.

Conclusion

Imitation protection under competition law is of very high interest in fashion articles because it – unlike, for example,registered designs or design rights– is in principle unlimited in time.

What is remarkable about the decision is the recognition that in imitation cases one cannot generally rely on the fact that a marking – even if clearly discernible – excludes a deception as to origin and thus the existence of an unfair imitation. Rather, this is a matter for the individual case, particularly regarding the type and content of the sign and the type of product.