Undercover at spoga+gafa 2023 – Kather Augenstein and Uexküll & Stolberg secure favourable judgement on the cost for Stiga

Successful at trade fair. On behalf of our client Stiga S.p.A., we were able to obtain a preliminary injunction against Topsun Europe for an infringing act at the “spoga+gafa 2023 – die Garten-Lifestyle-Messe” in Cologne. The infringement was confirmed by the Higher Regional Court of Düsseldorf in a favourable judgement on the costs, after Topsun was liquidated.

Patent infringements at trade fairs are always something special. They have the advantage that preliminary injunctions – if founded – can be issued exparte partes and at short notice. Service and enforcement can also take place at the infringer’s trade fair booth. However, the infringement, i.e. the actual offering, can often only be proven during the trade fair itself. A visit to the trade fair stand and quick actions are essential. We were therefore in action at the trade fair for our client Stiga against Topsun Europe, the Czech subsidiary of the Chinese company Zhejiang Zhongjian Technology Co. Ltd.

Stiga is well known to gardeners and gardening enthusiasts. The company, based in Castelfranco Veneto (TV), Italy, is a leading European manufacturer and distributor of garden machinery and equipment, and is the European market leader in ride-on category. Stiga is the owner of a large number of industrial property rights, including European Patent EP 2 193 703 B1 (EP 703).

According to DIN standards, lawn tractors must have a device that checks the presence of the driver and brings the engine to a standstill within the prescribed space-time limit when the driver leaves the driver’s seat. The subject of EP 703 is such a safety device that requires no adjustment and ensures correct operation of the tractor on slopes or rough terrain.

Stiga had already examined tractor models from Zhejiang Zhongjian Technology’s “TOPSUN series” in the run-up to the trade fair and found four of them infringing EP 703. However, no business activities in Germany were known until the trade fair. Our client therefore instructed us to check the trade fair presentation for possible infringements and to assert Stiga’s rights if necessary. Our visit to the Topsun Europe’s booth shortly after the opening of the trade fair brought certainty – an infringing lawn tractor was presented there and all infringing models were shown in a brochure, which an employee showed on request. A warning letter was served on the same day, which was a requirement for the subsequent measures.

The Regional Court of Düsseldorf issued the preliminary injunction we applied for just one day later. The enforcement followed in the morning of the third day of the trade fair, just 48 hours after the opening. Topsun Europe had to remove the presented model and the brochures from the booth and attach a disclaimer to an advertising banner.

The injunction was confirmed in the first instance following an opposition and an oral hearing. After Topsun Europe had been liquidated and deleted from the Czech commercial register, the parties agreed in the appeal that the proceedings were settled and only disputed regarding the costs. This judgement was also in our client’s favour. In a detailed and well-reasoned decision, the Higher Regional Court Düsseldorf was convinced that the disputed lawn tractors infringed the patent in suit and that Topsun Europe should therefore be ordered to bear the costs.

It should also be mentioned that both courts had no doubts about the validity of EP 703. This is remarkable, as the German courts generally only consider the validity to be sufficiently secured if a first-instance decision on the validity has already been issued. However, this has not yet been the case.

However, only the Federal Patent Court will make a final decision on the validity. Zhejiang Zhongjian Technology filed a nullity action in October 2023, the decision on which is still pending. Based on the progress to date, however, we are optimistic that this decision will also be in Stiga’s favour. Stiga continues to defend itself against the distribution of the infringing products of Zhejiang Zhongjian Technology in Europe. It is currently conducting another lawsuit against them in Italy, before the Tribunal of Turin, for infringement of EP 703 and two further patents.

In the proceedings, our clients were supported by Mr. PA Lars Manke from Uexküll & Stolberg. Christopher Weber and Sophie Prudent from Kather Augenstein argued on behalf of Stiga.