FRÄNKISCHE Industrial Pipes prevails against ABB in dispute over the protection of intellectual property rights under competition law with KLAKA and WEICKMANN

This was decided by the Higher Regional Court of Karlsruhe (case no.: 6 U 255/21). The company FRÄNKISCHE Industrial Pipes GmbH & Co. KG, based in Königsberg/Bavaria, prevailed against ABB in the commercially important Court proceedings.

The starting point was an action brought by ABB for patent infringement and supplementary protection under competition law before the Regional Court of Mannheim (case no.: 2 O 124/17). The infringement proceedings were stayed pending the decision of the Federal Patent Court (BPatG) in the parallel nullity proceedings. The nullity action was partially successful. The patent in suit has meanwhile expired.

The contested fitting of FRÄNKISCHE Industrial Pipes, offered under the product name FIPLOCK ONE, is sold in particular to large commercial customers such as companies in the field of mechanical and plant engineering as well as railway engineering with professional purchasing departments. The fitting is technically particularly advantageous because it combines simple assembly with especially high tightness (meeting protection class IP69) and withstands high pull-out forces. It reliably protects lines and cables where corrugated pipes are connected to each other or to a device such as a railway carriage.

The infringement proceedings in Mannheim and Karlsruhe related to the economically important question whether ABB's connectors for corrugated pipes, which were still protected under a patent at the beginning of the first-instance proceedings, sufficient competitive distinctiveness so as to prohibit the sale of the independently designed FIPLOCK ONE after the expiry of the patent protection based on Sec. 4 no. 3 German Unfair Competition Law (UWG) (formerly Sec. 4 no. 9). This was denied in the first and the second instances. The judgement of the OLG of Karlsruhe is final and absolute. The topic has been hotly debated not only since the decisions of the Federal Supreme Court “Exzenterzähne” (case no.: I ZR 107/13) and “Bodendübel” (case no.: I ZR 197/15). The decision of the OLG of Karlsruhe further substantiates this case law on the protection of formerly patented technical products under competition law.

FRÄNKISCHE is a leading manufacturer of a wide variety of pipes, accessories and system components for the areas building construction, civil engineering, automotive and industry with their headquarters in Königsberg in Lower Franconia. The basis of today's product diversity of the family-owned company are numerous key inventions such as the flexible metal electrical installation pipe, its further development in plastic and the yellow drainage pipe. The group of companies employs more than 5,000 people at 19 production and sales locations worldwide and generated sales totaling to 634 million Euros in the financial year 2021/2022.

In the proceedings, FRÄNKISCHE Industrial Pipes was represented by partner Dr. Constantin Kurtz of KLAKA Rechtsanwälte and by patent attorney Dr. Markus Herzog, partner at WEICKMANN. Lars Twelmeier of the IT law firm Twelmeier in Ulm acted on behalf of ABB Schweiz AG. Dr Constantin Kurtz and Dr Markus Herzog have jointly represented FRÄNKISCHE Industrial Pipes comprehensively in patent disputes in Germany for many years.

Representatives of FRÄNKISCHE Industrial Pipes GmbH & Co. KG
KLAKA Rechtsanwälte
Dr. Constantin Kurtz, Rechtsanwalt/Attorney-at-Law, Partner

WEICKMANN
Dr. Markus Herzog, Patentanwalt, European Patent Attorney, Partner

In-house FRÄNKISCHE Industrial Pipes
Frank Bayer, Head of Intellectual Property Rights of the Fränkische Group

Representatives of ABB Schweiz AG
Lars Twelmeier, IT-Kanzlei Twelmeier

Higher Regional Court (OLG) Karlsruhe
Andreas Voß, Presiding Judge of the Higher Regional Court
Benjamin Stihler, Judge of the Higher Regional Court
Christoph Lehmeyer, Judge of the Higher Regional Court

Contact person
Dr. Constantin Kurtz, Rechtsanwalt/Attorney-at-Law, Partner
KLAKA Rechtsanwälte Munich
Tel.: +49 (89) 99 89 190 | E-Mail: ckurtz@klaka.com