Anyone who produces a virtually identical imitation of a successful product and then distributes it through a retailer cannot readily hide behind their role as manufacturer or supplier. In its judgment of 2 September 2026 (Az. (case no.) 2-06 O 156/25), the Landgericht Frankfurt am Main (Frankfurt am Main Regional Court) clarified the requirements for protection against imitation under unfair competition law and, at the same time, confirmed liability within a distribution chain involving a division of responsibilities.
The decision is particularly significant for the question of the circumstances under which a supplier may also be held responsible for a retailer’s anti-competitive distribution activities. In addition, the judgment contains important findings on the competitive individuality of product ranges and the calculation of the infringer’s profits.
Imitation of established sun loungers
The dispute concerned folding garden sun loungers from a model range that the claimant had successfully marketed for many years. The products were distinguished by a characteristic construction. This included, in particular, the arrangement of the U-shaped support tubes, the attachment of the reclining surface to the frame and the design of the headrest.
The claimant had already been distributing the model range for many years and had repeatedly taken action against imitations in the past.
Defendant 1 commissioned the manufacture of garden sun loungers under its own brand in Asia and subsequently supplied them to Defendant 2. The latter distributed the products, among other channels, via an online platform.
The sun loungers offered displayed extensive similarities to the claimant’s products.
Injunctive relief and disclosure claims previously enforced
In earlier proceedings, the claimant had already successfully enforced claims for injunctive relief and disclosure against the retailer (LG Frankfurt am Main, judgment of 23 February 2023 – Az. 2-03 O 262/22; upheld by the OLG Frankfurt am Main (Frankfurt am Main Higher Regional Court), Az. 6 U 35/23).
From the information disclosed, the claimant learned that the retailer had obtained the products at issue from Defendant 1. It then also brought claims against the supplier. In particular, it sought injunctive relief, disclosure, an account of profits and damages.
The defendants argued, among other things, that the companies were legally independent and that Defendant 1 had merely acted as a supplier. They also contended that confusion as to commercial origin was ruled out because the products had been offered under a separate brand.
LG Frankfurt judgment: injunctive relief, disclosure and damages
The Landgericht partially upheld the action.
Defendant 1 was ordered to cease offering the sun loungers at issue in Germany or arranging for their distribution there. Each infringement may result in an administrative fine of up to EUR 250,000 or, alternatively, coercive detention.
In addition, Defendant 1 must provide comprehensive information about its suppliers, the quantities purchased, purchase prices, production costs and sales proceeds. The court also declared that it was obliged to compensate the claimant for all losses already incurred and to be incurred in the future as a result of the anti-competitive conduct.
The retailer was also ordered to pay damages. In this regard, the claimant had sought disgorgement of the infringer’s profits generated through the distribution of the products.
The decision is therefore of particular interest to original manufacturers wishing to take action not only against the retailer directly involved but also against upstream companies in the supply chain.
Competitive individuality of the product range
The legal starting point is § 4 Nr. 3 UWG (German Act Against Unfair Competition). Under this provision, anyone who offers goods that imitate those of a competitor and thereby causes avoidable confusion as to their commercial origin acts unfairly.
The first requirement is that the original product possesses competitive individuality.
This exists where the specific design or particular features of a product are capable of indicating its commercial origin or distinctive qualities to the relevant public.
The decisive factor is not whether individual design features are particularly original. Rather, the overall impression created by the product is relevant. The combination of several design elements, each of which may be commonplace in itself, may also establish competitive individuality.
The Landgericht relied on the characteristic construction features of the sun loungers and endorsed the assessment of the Oberlandesgericht Frankfurt (Frankfurt Higher Regional Court), which had already been upheld in the earlier proceedings.
It is particularly important that not only individual models but also a product range as such may enjoy protection under unfair competition law. The requirement is that recurring design features give the products a characteristic appearance and that the relevant public therefore associates them with a particular manufacturer.
Technical necessity does not preclude protection
The defendants had argued that the design of the sun loungers was dictated by their technical function.
The Landgericht rejected this argument.
When determining whether particular design features are technically necessary, reference must be made to other products that fulfil the same technical purpose. The relevant market must not be artificially restricted to products with exactly the same technical functions.
Since comparable sun loungers with footrests can also be manufactured using different constructions, the court found that the specific design was not technically necessary.
Moreover, even technically dictated features may be taken into account in the overall assessment if other freely configurable elements also shape the overall impression.
In practice, this means that reliance on technical requirements does not automatically preclude protection against imitation under unfair competition law.
Virtually identical imitation
The Landgericht found that the product was a virtually identical imitation.
The decisive factor was the overall impression created by the respective products from the perspective of the average consumer. In this context, the specific circumstances in which the products are offered are particularly important.
Consumers do not usually see the original and the imitation directly side by side. Instead, they compare the products based on their recollection of the original.
Differences that only become apparent upon a detailed side-by-side comparison or when viewed from another perspective are therefore not necessarily decisive.
Design features copied
In the case at hand, the very design features that established the competitive individuality of the original products had been copied. Differences in individual details and accessories did not alter this conclusion.
Knowledge of the original
In the court’s view, the imitator was also aware of the original. If a product appears on the market after the original, a rebuttable presumption of knowledge applies in this respect. The defendant was unable to rebut this presumption.
A separate brand does not automatically prevent confusion as to origin
The defendants further argued that the use of a separate brand ruled out confusion as to commercial origin.
In principle, a clearly visible and different indication of the manufacturer may be capable of dispelling confusion as to origin.
However, the decisive factor is how the relevant public actually understands the indication. A different brand is not sufficient in all circumstances.
Direct and indirect confusion as to origin
A distinction must be drawn between direct and indirect confusion as to origin. Indirect confusion as to origin exists, for example, where consumers assume that the product originates from another manufacturer but nevertheless believe that an economic or organisational connection exists with the original manufacturer.
The judgment therefore makes clear that a separate brand does not automatically provide protection against claims under § 4 Nr. 3 UWG. The specific circumstances of the distribution and the perception of the relevant public remain decisive.
Supplier’s liability for distribution by the retailer
The findings regarding the responsibility of Defendant 1 are particularly relevant in practice.
It had argued that it had merely acted as a supplier and had no influence over the retailer’s specific online listings.
However, the Landgericht regarded the supply of the imitation products itself as a relevant distribution activity. An offer within the meaning of § 4 UWG does not include only a direct sales offer to end customers. It may also include the delivery of imitation products to an intermediary.
Defendant 1 had itself sold the sun loungers at issue to the retailer and had therefore contributed to their distribution.
The court expressly held that Defendant 1 was the proper defendant with regard to the offering and distribution of the contested products. In this respect, the court based the supplier’s liability on concerted conduct involving a division of responsibilities within the meaning of § 830 BGB (German Civil Code), because both defendants were aware of the joint business model.
Organisational and economic links
The court also considered the organisational and economic links between the companies. In particular, the managing director of Defendant 2 was also the managing director of Defendant 1. Furthermore, it was standard business practice for Defendant 1 to resell goods manufactured abroad to Defendant 2.
The supplier was therefore not merely an unrelated third party but was itself involved in the distribution of the imitation products.
The decision shows that companies cannot avoid their liability under unfair competition law merely by allocating manufacturing and distribution to different corporate entities.
Damages and calculation of the infringer’s profits
Another key aspect of the judgment concerns the calculation of damages.
The claimant sought disgorgement from the retailer of the infringer’s profits generated. However, this does not automatically require disgorgement of the entire profit generated with the products. Instead, consideration must be given to the proportion of the profit specifically attributable to the anti-competitive imitation.
The court determined this causal share by way of estimation pursuant to § 287 ZPO (German Code of Civil Procedure).
Factors to be considered include, in particular,
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the importance of the copied design to the purchasing decision,
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the degree of imitation and
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other factors influencing the purchasing decision, such as functionality and price.
The judgment also highlights the importance of a transparent and verifiable account of profits.
An infringer seeking to deduct costs that reduce profits, such as advertising or transaction costs, must substantiate and prove them. A mere blanket assertion is insufficient.
It is particularly relevant that an infringer also bears a heightened burden of substantiation if it subsequently wishes to depart from information or an account previously provided. It must explain and substantiate in a transparent manner why the original information should be corrected.
Complete and reliable disclosure is therefore of considerable importance when enforcing claims for damages.
Practical legal consequences
The judgment has practical significance for manufacturers, importers, suppliers and retailers.
For original manufacturers: Even without a registered design or other intellectual property rights, a product design may be protected under unfair competition law. The decisive question is whether it possesses competitive individuality and satisfies the requirements for an unfair imitation. Documentation of market presence, sales figures, characteristic design features and advertising expenditure may be decisive in the event of a dispute.
For manufacturers and suppliers: Anyone who commissions the manufacture of imitation products and deliberately introduces them into a distribution chain may themselves be liable under unfair competition law. The absence of a direct relationship with end customers does not provide protection against claims for injunctive relief and damages.
For retailers: Sourcing products from an external supplier does not automatically relieve a retailer of liability. The use of a separate private label also does not necessarily rule out confusion as to commercial origin.
For litigation: Claims for disclosure and an account of profits are important instruments for clarifying supply and distribution channels and determining the infringer’s profits. Companies should therefore carefully document their sources of supply, purchase invoices, sales figures and cost items.
Conclusion: Judgment confirms the extensive scope of protection against imitation under unfair competition law.
The judgment of the LG Frankfurt am Main confirms the extensive scope of protection against imitation under § 4 Nr. 3 UWG.
A product range may also possess competitive individuality due to recurring characteristic design features. If these features are copied virtually identically and this causes avoidable confusion as to origin, the distribution of the imitation may constitute unfair commercial conduct.
The supplier’s responsibility is particularly significant: anyone who introduces imitation products into the distribution chain cannot readily rely on their status as a mere supplier.
For original manufacturers, the decision therefore opens up opportunities to take action against imitations throughout the entire distribution chain. Conversely, companies should assess at the product development and procurement stages whether third-party product designs may be protected under unfair competition law.
MTR Legal Rechtsanwälte advises manufacturers, retailers and suppliers on matters of unfair competition law; further information is available under Legal advice on unfair competition law.
