Press Release of September 18, 2012
In February 2012, the Austrian Fischer Sports GmbH had surprised Finnish Oneway Sport OY at the Munich "ispo" fair, the most important international fair of sports equipment, with a sales ban based on a preliminary injunction issued by the Cologne District Court (Case 84 O 23/12). The injunction was directed against the distribution of certain types of skis, shoes and caps of the cross-country sector. In ex parte proceedings Fischer had persuaded the Court that the combined colours of black-yellow were corporate colours of Fischer and therefore suitable to distinguish the related products from those of other manufacturers. The sales and distribution of black-yellow skiing equipment by Oneway was thus deemed a case of unfair competition, pursuant to Section 4 No 9 lit a German Act against Unfair Competition. The preliminary injunction forced Oneway to remove its black-yellow products from its booth at the fair.
With the help of BARDEHLE PAGENBERG, Oneway successfully opposed this decision before the Cologne District Court. Now, in inter partes proceedings, the very same Court was convinced that the colour combination of black-yellow per se was not sufficient to let the relevant circles of consumers associate such skiing equipment with a certain manufacturer. In fact, Fischer was also offering products in other colours and was not the only manufacturer of skiing equipment with this combination of colours.
Oneway also emerged victoriously from the ensuing appeal proceedings. In oral proceedings of September 7, 2012 the Cologne Appeal Court (Case 6 U 98/12) clarified that neither any requirements of unfair competition law were being met, nor was the black-yellow eligible for any trademark protection. Fischer, in consequence, had to take back its appeal, the decision of the Cologne District Court thus becoming final.
Legal representatives Oneway Sport OY:
BARDEHLE PAGENBERG (Munich):
Clemens Rübel (Attorney-at-law, Partner),
Tiffany Zilliox (Attorney-at-law)
Legal representatives Fischer Sports GmbH:
Loth & Spuhler (Munich): Dr. Oliver Spuhler (Attorney-at-law), Matthias Geitz (Attorney-at-law)
Cologne District Court (4. Commercial Chamber): Dr. Manfred Kreß (Presiding Judge)
Cologne Appeal Court (6. Civil Senate): Hubertus Nolte (Presiding Judge)