OLG Düsseldorf: Apple vs. Samsung: Injunctions against sale of certain Samsung tablet PCs in Germany (Galaxy Tab 8.9 and Galaxy Tab 10.1; OLG Düsseldorf, Urteil vom 31. Jan. 2012, Az. I 20 U 126/11 and I 20 U 157/11)

von Rechtsanwalt Dr. Marcus Dittmann


The Appellate Court of Dusseldorf has ruled on 31 January 2012 that the sale of certain models of Samsung tablet PCs – namely Galaxy Tab 8.9 and Galaxy Tab 10.1 – is illegal in Germany, and the court has granted or confirmed injunctions to that effect.

The court has dealt with two earlier cases which had been decided by the local District Court in September 2011:

  • Apple vs. Samsung RE: Galaxy Tab 8.9: Landgericht Düsseldorf, Urteil vom 15.09.2011 Az.: 14c O 219/11, Oberlandesgericht Düsseldorf, Urteil vom 31. Jan. 2012, Az. I 20 U 126/11
  •  Apple vs. Samsung RE: Galaxy Tab 10.1: Landgericht Düsseldorf, Urteil vom 09.09.2011, Az. 14c O 194/11, Oberlandesgericht Düsseldorf, Urteil vom 31. Jan. 2012, Az. I 20 U 175/11

The court has held that both Samsung products infringe upon intellectual property rights held by Apple, Inc., in regard to it iPad tablet PC.

Apple, Inc. had sought an injunction against any manufacture, import, or sale of said Samsung products in Germany and the entire territory of the European Union. Apple argued that the Samsung products in question resembled the original Apple iPad product much too closely, thereby violating a registered Community design patent (cf. Council Regulation (EC) No 6/2002 as implemented by Commission Regulation (EC) No 2245/2002). The law suit was directed both against both the Samsung parent company of South Korea and the German Samsung subsidiary.

The Dusseldorf court therefore had to deal with the interesting legal question of wether it, being a local court in Germany, held jurisdiction for the entire territory of the European Union in this respect.

In this regard, the Dusseldorf Appellate Court came to the conclusion that the Dusseldorf courts are indeed competent to rule for the entire territory of the EU insofar as a community design patent (Gemeinschaftsgeschmacksmuster) is concerned. This is a significant decision because it shows that German courts may indeed take decisions in regard to intellectual property rights that may have effect not only in Germany but other European countries as well. The same may apply not only in cases of Community design patents but also where Community trademarks (Gemeinschaftsmarken) are concerned.

In the case under consideration, however, the court still only granted an injunction limited to the territory of Germany proper. This was due to a technicality in the legal reasoning:

Upon close comparison of the products that judges came to the conclusion that in this particular case, the Samsung tablet PCs in question were different enough from the Apple iPad in a number of minor details, so that overall, they did not fall under the immediate scope of protection granted by the registered Community design patent. The court made a meticulous analysis of the design details for this purpose. Also, it considered a certain prior US patent for a flat screen monitor (Ozolins-Design) as prejudicial regarding the dsign. Consequently, as the court considered the Apple Community design patents as not applicable in this case, there could be no injunction covering the territorial scope of the Community design patent, meaning the rest of Europe.

However, the judges still considered the design to be so close to the Apple model as to amount to an unfair exploitation of said original product. Such may be considered an unfair business practice which is illegal under the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG). Pursuant to sec. 4 Nr. 9 b UWG such business practices may be considered illegal which consist of imitating a competitor’s successful product in a manner which unduly reminds customers of the original, and said original is particularly renowned.

In the present case, the court ruled that these conditions were met: The two Samsung tablets
Galaxy Tab 8.9 and Galaxy Tab 10.1 are, according to the German judges’ opinion, much too close to the Apple iPad design, and in this they are clearly designed to profit from the latter’s renown and prestige.

As the German Act against Unfair Competition naturally only applies to the territory of Germany – unlike the Community design patent which covers all of the European Union per EU regulation – the injunction could therefore only apply to Germany.

Therefore, in effect, the Dusseldorf court ruled that Samsung may definitely not offer its two models Galaxy Tab 8.9 and Galaxy Tab 10.1 for sale in Germany. This goes for both the Samsung parent company of South Korea and the German Samsung subsidiary. Sales in other European countries are not affected though.

The decision regarding said two tablet models is final.

It should be noted that the court’s decision does not affect the latest Samsung tablet model Galaxy Tab 10.1 N. There is a separate law suit ongoing regarding this model. The case is currently (February 2012) still in the initial stage at the Dusseldorf District Court (Landgericht Düsseldorf, Apple vs. Samsung RE Galaxy Tab 10.1 N, Az. 14c O 292/11). The outcome of this law suit remains to be seen.

Lawyer’s note:

The case of Apple vs. Samsung regarding the tablet PC is a good example to show the relative effectiveness and speed of injunctive action in Germany. Also, it illustrates the importance of having a registered intellectual property right, as it makes arguing one’s case much easier. In the case of European wide registrations there is an opportunity to have German courts decide with effect for other European territories as well.

German law offers a wide range of effective legal remedies to enforce and defend intellectual property rights. These range from out-of-court warning letters and cease and desist letters to immediate court injunctions and claims for damages. Also, the reimbursement of legal costs may be claimed from an infringing party. Any strategy aimed at enforcing intellectual property rights internationally should consider the German market and the legal enforcement opportunities to be found in Germany.

If you have any questions please feel free to contact:
Dr. Marcus Dittmann




IHDE & PARTNER, RECHTSANWÄLTE - Schönhauser Allee 10-11, 10119 Berlin      
Tel: (+49) (0)30 - 44318660 / Fax:(+49) (0)30 - 44318679