LG Hamburg; 2018-01-26; 308 O 488/16
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2018:0126.308O488.16.00
Date: 2018-01-26
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82018DE0126(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a Swiss watchmaker (hereinafter ‘the defendant’) in connection with the production and sale of wrist watches, seeking a cease and desist order, the provision of information and the determination of damage incurred.
The plaintiff claimed to have developed two wristwatch models while being a shareholder of the defendant and that his copyright regarding these two models subject to the action was infringed.
The defendant challenged the international jurisdiction of the German courts and stated further that the respective models had not met the necessary threshold of originality required under Article 2(2) UrhG (1) and that the ‘cauldronlike’ shape of the wristwatches with straight falling sides of the case had been already used in observation watches during the Word War Second and also in a different model created later.
The action is partially inadmissible.
With respect to the use consisting in reproduction and displaying, the German courts do not have international jurisdiction. The plaintiff did not state that the reproduction was conducted in Germany or that the respective models subject to the action had not been made public. In addition, the defendant did not omit to contest the proceedings under Article 24 of the new Lugano Convention (2).
The action was found unjustified for the rest.
The Landgericht Hamburg (hereinafter ‘the Court of First Instance’) had international jurisdiction under Article 5(3) of the new Lugano Convention.
The plaintiff’s claim for a cease and desist order regarding the use of the models subject to the action under Article 91(1) UrhG was not upheld on the grounds that both models in question had not qualified for a protection under copyright law due to their lack of the required threshold of originality under Article 2(2) UrhG. In order for a work to achieve the required threshold of originality, it must allow for circles, who are sensitive to art and familiar with art to a certain degree, to speak about an ‘artistic’ performance (3).
The defendant, having the burden of proof and the provision of evidence, had successfully proved that the models subject to the action showed a combination of previously known design elements in the industry.
The Court of First Instance dismissed the action of the plaintiff.
(1) Urheberrechtsgesetz (Act on Copyright and Related Rights).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Bundesgerichtshof (BGH), judgement of 13.11.2013 - I ZR 143/12.