Decision keyword:
Spray gun
Law applied:
Section 133(2) PatG
Section 287 ZPO
Summary:
- If, in the context of teleshopping, so-called infomercials for the patent-infringing product are broadcast which exclusively advertise this product and enable the product to be ordered directly by telephone by displaying a telephone number ("direct response TV"), the costs of booking the corresponding broadcasting time with various TV stations constitute product-related costs which must be taken into account in reducing the infringer's profits when calculating the amount of those profits. This also applies if the broadcasting time is booked in advance and it is only later determined which product will be advertised and when, as long as the costs for specific broadcasting times can be clearly attributed to the patent-infringing product.
- When assessing the causal share, special sales efforts by the patent infringer can be taken into account if the patent in suit only relates to a minor improvement and the marketing success does not depend decisively on it, because devices that are not equipped in accordance with the invention are also practically usable and find buyers. In this case, even when taking the necessary evaluative considerations into account, the infringer's sales structure is a significant causal factor in terms of sales and therefore reduces the share of the profit generated by the use of the patent in suit (in line with: OLG Düsseldorf, judgment of June 3, 2015 – I-15 U 34/14, GRUR-RS 2015, 13605 marginal no. 254 – Funkarmbanduhr)
Higher Regional Court of Düsseldorf, judgment of June 5, 2025 – 2 U 47/24
Download Judgment (machine translation)
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