Press release of January 25, 2013

By decision of January 10, 2013 (Case 29 U 3188/12) the Munich Appeal Court confirmed the decision of the Munich District Court of June 14, 2012 (Case 4 HK O 27375/11), prohibiting distribution of key rings of the type “LOXX b eye” of IDENTA Ausweissysteme GmbH. The Court had found these key rings to be an almost identical imitation of the model “Classic” of MADA Marx Datentechnik GmbH, represented by BARDEHLE PAGENBERG.

The claimant, being domiciled in the town of Villingen-Schwenningen where also the defendant company has its residence, is a successful mid-sized enterprise manufacturing and distributing for more than 30 years identification media and connected systems for world-leading companies.

The court proceedings focussed on the protection of key rings under German unfair competition law. These are key rings which serve as receptors of security media (so-called RFID-Transponders). Such security systems are used for protecting buildings and rooms from unauthorised entry; today they are employed by many large offices, institutions and courts.

End of June 2011, MADA discovered that the defendant advertised the key ring “LOXX b eye” in the specialist magazine “PROTECTOR”. In the course of only a few days BARDEHLE PAGENBERG obtained a preliminary injunction which was promptly served on the defendant at the “Sicherheitsexpo 2011”, a trade fair on security systems in Munich. The defendant filed an appeal against the preliminary injunction which it then however withdrew, requesting the claimant to file a main action. The claimant sued indeed – and stayed again successful.

According to the Munich Appeal Court, the claimant’s model “Classic” has competitive individuality in the sense of German unfair competition law, whereas “LOXX b eye” is a nearly identical, unfair imitation, its distribution deceiving consumers in an avoidable manner as to the origin of the product. According to the Munich Appeal Court, the design of “Classic” was not necessarily predetermined by technical aspects, which was also proven by the market. The considerable similarities between the two models, therefore, could have been easily avoided by the defendant.

An appeal to the German Federal Supreme Court was not admitted by the Munich Appeal Court. IDENTA, however, can still lodge an appeal for leave to appeal before the Supreme Court.

Legal representatives MADA Marx Datentechnik GmbH:
BARDEHLE PAGENBERG (Munich)
Dr. Henning Hartwig (Attorney-at-Law, Partner),
Dr. Philipe Kutschke (Attorney-at-Law)

Legal representatives IDENTA Ausweissysteme GmbH:
Oppenländer Rechtsanwälte (Stuttgart)
Dr. Christina Koppe-Zagouras (Attorney-at-Law)
Westphal, Mussgnug & Partner (Villingen-Schwenningen):
Dr. Sebastian C. Schneider (Patent Attorney)

Munich Appeal Court (29. Civil Senate)
Rainer Zwirlein (Presiding Judge)

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