Beware of trade names of allegedly infringing products in requests for injunctive relief

Case No. S2012_002 ¦ Order of 7 March 2012 ¦ “Formulierung von Rechtsbegehren”

In this interlocutory order, the FPC again objected the wording of a request for injunctive relief (cf. also case S2012_003 for further reference to the case law of the Federal Supreme Court in this respect). Here, the request merely referred to a specific product identified by its trade name and by reference to a flyer pertaining to this allegedly infringing product. However, such reference to the flyer would fail for several reasons:

First, the flyer was obviously made for advertising purposes only, but not in order to identify embodiments of features of the allegedly infringed patent. By means of example: For at least one feature of the claim, it was not readily apparent whether or not it is fulfilled by the product described in the flyer.

Second, the mere reference to a product name in the request is not sufficient anyhow. A product name can be changed, and/or a different product can be sold under the same name. Thus, a product name cannot replace the detailed description of the technical embodiment of the allegedly infringing product.

The Plaintiff was ordered to rectify the request accordingly in the reply; otherwise, the case will not be considered by the FPC.

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. S2012_002 ¦ Order of 7 March 2012 ¦ “Formulierung von Rechtsbegehren”

(not identified) ./. (not identified)

Subject(s):

• Preliminary Injunction

Composition of the Board of the FPC:

• Dr. iur. Dieter BRÄNDLE (President, Single Judge)
• Lic. iur. Jakob ZELLWEGER (First Court Secretary)

Representative(s) of Plaintiff:

• (not identified)

Representative(s) of Defendant:

• (not identified)