Decision keyword:
Table-top Grill
Law applied - Part I:
German Utility Model Act (GebrMG) Section 15
Summary – Part I:
- In utility model cancellation proceedings, the limited defense of a claim attacked with a partial cancellation request by combining it with a sub-claim not attacked in this respect or with one of several variants of a sub-claim not attacked in this respect is also inadmissible (supplement to Federal Supreme Court BGH, judgment of March 1, 2017 - X ZR 10/15, GRUR 2017, 604 para. 33 - Ankopplungssystem; judgment of June 13, 2023 - X ZR 47/21, GRUR 2023, 1274 para. 150 - Anschlussklemme).
- On the other hand, there is an interest in legal protection if the claim attacked is only supplemented by some of the features of a sub-claim not attacked (confirmation of Federal Supreme Court (BGH), judgment of June 13, 2023 - X ZR 47/21, GRUR 2023, 1274 para. 151 - Anschlussklemme).
Law applied - Part II:
German Utility Model Act (GebrMG) Section 17 para. 4 sentence 1;
German Patent Law (PatG) Section 84 para. 2 sentence 2;
Code of Civil Procedure (ZPO) Section 93
Summary - Part II:
- As a rule, there is no reason to file a cancellation request if the utility model owner has already filed amended requests before the proceedings are initiated and has declared that the request for protection is limited to the new claims (supplement to Federal Supreme Court BGH, judgment of June 27, 2023 - X ZR 59/21, para. 149 - Anzeigemonitor).
- If the claimant requests a cancellation of the utility model to a greater extent after submitting such a declaration and if this request is successful, the application of Section 93 Code of Civil Procedure (ZPO) in favor of the respondent is generally not considered.
Federal Supreme Court (BGH), Decision of September 12, 2023 - X ZB 12/20 -
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