The court first ruled that the argument of the defendant, stating that he was the first to bring the product on the market, was not allowed based on the lack of information provided by the defendant on the exact time the named product was brought to the market for the first time.
Next, the court reviewed whether section 2 paragraph 3 item 1 of the Unfair Competition Act (implementing article 6, section 2, (a) of the UCP Directive) could be applied in this case. Since the packaging of the plaintiff was not protected through special laws, the court had to conduct its review according to unfair commercial law standards.
(1) The court first came to the conclusion that item 13 of the Annex to the UCP Directive could not be applied as the claim clearly asked for a general cease and desist (regarding offering and distribution) while the mentioned provision only refers to such practice in the course of a "promotion".
(2) Next, the court applies section 2 paragraph 3 item 1 of the Unfair Competition Act, implementing article 6, section 2, (a) of the UCP Directive stating that a commercial practice is considered to be misleading when it is likely to deceive the average consumer involving any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other marks of a competitor. According to the court, the defendant has infringed this provision. The court stated that a misleading practice is constituted if it is likely to deceive an average consumer. According to this specific provision, the goods in question have to have certain competitive characteristics - in this case the specific arrangement of the knifes in the set, which the defendant has identically reproduced. Since knife sets are usually sold in open packages, there is a danger of confusion in this case and so the prohibitive orders were justified, according to the court.
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