Facts
The case concerns a license agreement for a design "jeu de pavé" registered with the International Bureau for Intellectual Property of WIPO for a concrete paving stone set. The plaintiff X. is the holder of this design right, which he exclusively licensed to the defendant [Y. AG] on September 28, 1978. From January 1, 1986, [Y. AG] refused to pay further license fees, as it doubted the existence of the right and had identified similar competing products on the market.
With his action, X. asserted design-related claims for injunction and demanded an accounting of the license fees as well as damages. The Commercial Court of the Canton of Bern dismissed the action, and the Federal Supreme Court confirmed this judgment.
Considerations
The Federal Supreme Court stated that the defendant had rightly raised the plea of invalidity of the underlying design right. The Commercial Court had rightly concluded that the deposited paving stone did not constitute a design within the meaning of the law and was therefore null and void under Art. 12 No. 4 of the Design Act.
Even if the design right was null and void, this would generally also lead to the termination of the license agreement. However, to a certain extent, account must be taken of the actual effects that a registered right can have despite its nullity due to its apparent existence. In the present case, the…