By the judgment of December 15, 2016 (1 ZR 197/15 “ground dowels”), the German Federal Supreme Court has set aside a judgment of the Higher Regional Court of Düsseldorf and referred the case back to that Court. The plaintiff is manufacturing ground dowels, which are devices to be driven into the soil to fix a pillar or the like on it. A patent protecting that product has expired in 2006. The plaintiff claimed from the defendant to cease and desist the distribution of almost identical ground dowels. In contrast to the Appeal Court, the Supreme Court found that protection against slavish copying is not necessarily excluded and has extensively discussed the question under which conditions a product design is required for technical reasons. It reads in the decision: “Technically necessary design features which are to be used in comparable products for mandatory technical reasons cannot be, for legal reasons, the basis of a commercial distinctiveness. Copying these features which are not or no longer protected by intellectual property rights cannot be objected to under unfair competition aspects because of the principle of a free state of the art. However, if the features are not mandatorily to be used for technical reasons, but only features which have a technical reason but which are nonetheless freely exchangeable without decreasing the quality, then these features can found a commercial distinctiveness as long as in the course of business, these features point to a certain origin of the product or a certain assumption of quality is attributed to these features”. Whether or not the features have been patent protected is not relevant according to the Supreme Court. The decision is specifically interesting because of numerous details where the Supreme Court applies a very generous standard to the benefit of the original product manufacturer.