Press release of December 14, 2011

The Swiss-based Coltène/Whaledent AG, an internationally leading developer, manufacturer and distributer of dental-medical consumer goods and small-sized devices, had successfully sued Edelweiss Dentistry Products GmbH, Austria, for Community design infringement. The subject matter of the three asserted and accused designs was the representation of so-called “Veneers”. These are extremely thin and light-transparent screen shells which are applied to the dental surface, primarily at the front teeth.

The Cologne Appeal Court had granted claims for design infringement ex parte and issued a preliminary injunction which, after first appeal of Edelweiss, was confirmed by judgment of June 29, 2011 (Case No. 84 O 69/11). The Cologne Appeal Court recently followed the assessment of the lower instance and also found validity and infringement of the Community designs (decision of November 25, 2011 – Case No. 6 U 155/11).

The Cologne Appeal Court held that it was not decisive how the asserted designs had been developed, but whether the result of this process produced a different overall impression compared with another, earlier design. In the case at hand, the prior art submitted by Edelweiss, however, was not detrimental to novelty and individual character of the asserted designs; the corresponding evidence was deemed to be inappropriate. The Cologne Appeal Court also found infringement as the asserted and accused designs produced the same overall impression, while minimal differences “receded into the realm of the imperceptible”.

Representatives Coltène/Whaledent AG:

BARDEHLE PAGENBERG (Munich):
Dr. Henning Hartwig (Attorney-at-law, partner)

Representatives Edelweiss Dentistry Products GmbH:

Hofstetter, Schurack & Skora (Munich): Dr. Patrick Baronikians (Attorney-at-law)

Cologne Appeal Court (6th Civil Senate): Hubertus Nolte (Presiding Judge)

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