The Austrian Supreme Court confirms (18. 3. 2025, 4Ob106/24b): The band of the attacked heating sock
has a different overall impression and cannot be confused with the following design, in particular because the press studs are technically necessary:
The design of the design patent creates a simple and elegant impression, while the defendant’s press studs (which have a slightly different spacing) are surrounded on three sides by descriptions, instructions and their word mark. This gives the design patent the impression of an elongated strip, whereas with defendant’s socks, the rectangle approaches a square or a squat grid. When looking at the rectangle on the sock, the eye is attracted by the white lettering, which stands out sharply against the black background, and its position in relation to the eyelets, not to the distance between the eyelets. This difference is so pronounced that it can be considered decisive for the overall impression and, on this basis, there is no infringement.