Imitation of the design of an electric heater as unfair competition

Facts

JURA Elektroapparatefabriken L. Henzirohs AG (hereinafter: Jura AG) has been marketing a portable electric heater under the name "Jura-Schnellheizer" since 1951. In 1955, Rotel AG also began manufacturing a portable electric heater, which it marketed under the name "Miotherm" in two different versions.

At the end of 1956, Jura AG filed a criminal complaint against Rotel AG for unfair competition, as it believed that the "Miotherm" heater was being confused by the public with its own product.

The High Court of the Canton of Aargau found the two directors of Rotel AG, Häuptli and Studer, guilty of unfair competition within the meaning of Art. 13 lit. d UWG, as it saw the "Miotherm" (Type A) as an imitation of the "Jura-Schnellheizer".

Häuptli and Studer filed a nullity appeal against this judgment, requesting that they be acquitted.

Considerations

The Court of Cassation upholds the judgment of the High Court. It finds that the external similarity of the two heaters creates a risk of confusion, as the shape, dimensions and design features such as air vents and transverse ribs are practically identical. The Jura-Schnellheizer has a distinctive design that distinguishes it from other similar devices.

While the adoption of external design features of technical products is generally permissible if the choice of a different design is possible and reasonable without changing the technical construction and without…