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Otto wanted to prevent his namesake from coming to Switzerland with the domain Otto-Shop.ch. The remaining merchant based in Sursee LU feared sales losses due to a likelihood of confusion.
In essence, the Swiss discounter had demanded that the German group Otto be banned from acting as a retail or mail order retailer in Switzerland under the labels Otto and Otto Versand. Then he wanted to forbid it to use a corresponding domain name with ".ch".
The cantonal court concluded that there was currently no risk that the defendant would enter the physical stores, as it is written in the verdict released Thursday. Therefore, a ban in this respect does not have any legal protection interest. In this regard, he did not respond to the action.
With regard to e-commerce in Switzerland, the court rejected the trial. According to the court, the plaintiff was not able to prove with legal certainty that he had claimed a protective position for the use of his mark.
Treaty of State in force
The Cantonal Court ruled that the defendants could invoke a contract between Germany and Switzerland of 1892 for the active use of their mark, which they had registered before that of the plaintiff. This is still in effect. As a result, the judges have confessed to the defendants the priority of using their mark in Switzerland.
The precautionary measures ordered by the decision of 14 August 2017 prohibiting the German group Otto from operating as a mail order company in Switzerland under the brands Otto and Otto Versand overturned the court.
Otto wants to go to the federal court
The Swiss discounter must bear all legal costs of the main procedure and the measurement procedure. These amount to 45,000 francs in total.
In addition, he must pay to the defendant an attorney's fee of 49,000 francs for the main proceedings and 19,700 francs for the interlocutory proceedings.
The verdict can be appealed to the Federal Court within 30 days. This is not yet definitive. As Otto's director, Mark Ineichen, has said at the request of the Keystone-SDA agency, he wants the verdict to be returned to the Federal Court.
Otto is not the same as Otto
Until now, coexistence was uneven: the Otto Group, founded in 1949 in Hamburg – today the second largest online retailer in the world after Amazon – has been spreading in Switzerland long before the foundation of Otto claims in 1978.
The Swiss discounter now operates as a retailer with around 2000 employees 100 branches. Since 2007, there is also an online store, which represents only 1 to 2% of total sales. Group sales in 2015 amounted to approximately CHF 649 million.
"The Otto brands in Switzerland are inviolable, which is of course a problem for Otto," said the representative of the German company at the end of October at the main trial in court. The representative of Swiss Otto felt that the likelihood of confusion was obvious. He concludes: "Otto belongs to Switzerland, Otto to the rest of the world".
(SDA)
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