In its ruling of 6 February 2025 (case no. 15 U 43/24), the Hanseatic Higher Regional Court of Hamburg dismissed all competition law claims brought by the manufacturer of the well-known “Geo-Cube” necklaces against three cube necklaces sold via otto.de. The court found that the low-priced competitor products did not constitute an avoidable misrepresentation of origin or unfair exploitation of reputation and also clarified that the scope of protection under Section 4 No. 3 UWG remains narrow in the case of merely average competitive character.
Facts of the case
Since 2005, the plaintiff has been selling high-quality necklaces in which coloured crystal cubes, metal plates, rhinestone rondels and stainless steel cylinders alternate in a recurring sequence. For these core models of its “Geo-Cube” series, it charges around 150 to 180 euros in specialised shops. In March 2022, the defendant offered three visually similar cube necklaces at a price of only 33 to 35 euros on otto.de. After the Hamburg Regional Court had ordered the defendant to cease and desist, provide information and pay damages, the Higher Regional Court overturned this decision in its entirety on appeal and dismissed the action.
Legal requirements
The established BGH case law on unfair imitation (Section 4 No. 3 a), b) UWG) is decisive. The first requirement is that the original product has a competitive character and is being imitated. In addition, there must be either an avoidable deception as to origin or an unreasonable exploitation or impairment of its value. Only the interaction of these elements can justify unfairness.
In the opinion of the court, the “Geo-Cube” chain merely embodies a basic design idea – namely to draw cube and square elements in a repeating sequence on a chain – which as such requires protection. Only its concrete realisation is eligible for protection. Despite many years of market presence, high unit numbers and advertising, the design in suit therefore achieved at most average competitive individual character. A clear distance to the market environment could not be proven.
Although the challenged chains adopted the basic sequence and essential materials of the original, they added metal blocks and thus broke the strict symmetry. For the average consumer, this did not result in an almost identical, but only a similar overall impression. However, a mere imitation – a copycat imitation – is generally not sufficient to assume unfairness in the case of only moderate individual character.
A direct deception pursuant to Section 4 No. 3 a UWG failed due to clear differences in quality and price, the lack of a manufacturer’s signet and the different distribution channel (pure online offer vs. jewellery trade). Even indirectly, the public, which is used to imitations in the fashion jewellery segment, would not assume a business connection with the plaintiff.
In the absence of deception as to origin, the necessary image transfer pursuant to Section 4 No. 3 b UWG was already lacking. In the case of only average originality and a mere approximation of the imitation product, particularly serious circumstances are required in order to be able to affirm an unfair exploitation of the reputation – however, the court was unable to establish such circumstances.
Practical tip
The judgement confirms the narrow limits of protection under competition law. Without above-average distinctiveness or almost identical adoption, imitation remains permissible up to the limit of deception. In matters of design and costume jewellery, it is not the abstract idea that enjoys protection, but only its concrete, unique form. Anyone claiming increased competitive originality must substantiate sales, market share and advertising figures as well as consistent defence measures. Manufacturers of creative jewellery and fashion designs should therefore also examine design or trademark protection strategies at an early stage.
Conversely, clear quality and price positioning as well as unambiguous labelling help suppliers of inspired products to avoid errors of origin and accusations of reputation exploitation