Puma vs. Dolce & Gabbana: Dispute Over Shower Slides

In the "shower slide dispute" before the Higher Regional Court (OLG) Munich between sportswear manufacturer Puma and luxury label Dolce & Gabbana, the latter emerged as the victor. Despite placing a shower slide on the market which showed high similarity to Puma's model, the judges saw it merely as a derivative imitation, thereby excluding a violation of competition law.

The popular sportswear manufacturer deployed a tried-and-tested marketing strategy: it developed a new shower slide with pop star Rihanna, which stood out in particular due to the trim with artificial fur on the strap.

The luxury label Dolce & Gabbana, which is known for its extravagant creations, followed suit and designed a similar model. At first glance, the two products were very similar. However, the higher-quality model by D & G, which at approximately 500 euros was significantly more expensive, was equipped with a leather sole and genuine mink fur. The Puma model, by contrast, offered only a rubber sole and artificial fur trim.

The sportswear manufacturer was of the opinion that D & G's model was an imitation and took the matter to court.

Judgment of the Higher Regional Court (OLG) Munich on the Shower Slide

The Higher Regional Court (OLG) Munich (Judgment of 12.07.2018, Az. 29 U 1311/18) found, as did the court below, no violation of competition law by Dolce & Gabbana. In principle, an imitation in the sense of competition law can be impermissible. For this, special circumstances must be present, such as for example an avoidable deception regarding the commercial origin of the product, in order to establish an unfair practice and thus a violation.

The shower slide "The Fur Slide by Rihanna" by Puma did indeed possess a competitive characteristic, since the combination of a shower slipper with an artificial fur strap was new to the market in this form. Since the shower slipper stood out so clearly from other models and the advertising with Rihanna further contributed to its reputation, it was suitable to indicate to the relevant circles of trade the origin of the shoes from the Puma house.

However, the judges saw in the Dolce & Gabbana model no identical or nearly identical imitation of the Puma model, but merely a derivative imitation. Such an imitation exists when the "original product" is used as a model and is recreated through the application of one's own effort. According to the court's view, what is decisive is whether the imitation exhibits the defining design features of the original or stands out clearly from it.

It was established that the undersole was designed differently and the surface pattern was also not identical. Furthermore, the shape of the shower slide in the front area was distinctly different and the strap did not bear the striking "PUMA" lettering designation. The fact that the strap in D & G's model was made of leather and trimmed with genuine mink (instead of fabric with artificial fur trim) also led the court to assume a derivative imitation by D & G. For the observer, it was obvious that it was a product by Dolce & Gabbana and not one from the Puma house, which is why no violation of competition law existed.

Conclusion

Despite great similarity, in the "shower slide dispute" the D&G model was not an identical but merely a derivative imitation. This is present when the "original product" merely serves as a model for a more or less oriented own effort. The court saw such independent effort in the shower slide designed by Dolce & Gabbana, so that no violation of competition law was present.