Requirements for content of surveys to prove or disprove the existence of competitive originality of a fashion product

A company selling a product that deceives the consumer about the commercial origin due to the product being an imitation of one of the company’s competitors is violating Sec. 4 No. 9a of the German Unfair Competition Act (UWG). However, this is only the case if the imitated product has competitive originality. Surveys are one possible instrument to prove or disprove the existence of such originality.

In its judgement of 11 December 2014 (15 U 92/14) the Higher Regional Court of Düsseldorf (OLG) laid down the requirements for the content of such surveys. In the underlying case – an injunctive proceeding – the French company Longchamp sought an injunction against the defendant regarding the sales of handbags that were an imitation of the plaintiff’s handbag “Le Pliage”.

The defendant submitted a survey to the OLG – the court of second instance – which was supposed to disprove the court of first instance’s assumption that “Le Pliage” has a competitive originality. The OLG however ruled in favour of the plaintiff because in the Court’s eyes the content of the submitted surveys was not convincing enough.

Regarding the evaluation of surveys, the Court held that even in preliminary injunction proceedings judges have to verify the content of the surveys and cannot trust them blindly. One part that needs to be verified is the exact wording of the question in the survey. In the present case the opening question of the survey described the plaintiff’s bag as a “cloth bag”, which will likely be understood by those surveyed as a kind of shopping bag. Hence, since “Le Pliage” is a leather-nylon-bag, the opening question had to be considered misleading. Furthermore none of the pictures shown to those surveyed showed the folded “Le Pliage”. However, the ability to be folded is one of the main characteristics of “Le Pliage“. Therefore the Court refused to rely on the submitted surveys. Hence the defendant failed in disproving the assumption of the existence of a competitive originality.