Supponor turns sport stadium advertising dispute against AIM Sport in Germany

Following developments at appeals courts in the UK and Germany, Supponor and Sportfive may once again use an older version of hardware-based technology for sports stadium advertising in Germany. The companies work closely together in the virtual marketing of advertisements for German Bundesliga clubs: Supponor provides the technology for virtual perimeter advertising, while Sportfive markets the ad spaces globally.

Tech for the Bundesliga

In 2022, the Munich Regional Court prohibited Supponor and Sportfive from offering and using its technology in Germany. Shortly after, claimant AIM Sport enforced the first-instance judgment. The defendants responded directly by lodging an appeal against the ruling.

The companies use the technology most prominently for broadcasting Bundesliga matches. However, it is also used in the transmission of other sporting events. Some estimates put the market potential of virtual perimeter advertising at between €3 billion and €5 billion. AIM Sport and Supponor each offer their own products.

Supponor’s older DBRLive technology makes it possible to place regionally-specific advertisements on LED boards. As such, when the Bundesliga is broadcast live internationally, the broadcaster can adapt the virtual perimeter advertising to suit regional target groups.

In 2022, Supponor offered its new software-based version under the brand name Supponor Air. However, the lawsuit filed by AIM Sport in Germany does not cover this. Although the Bundesliga has tested the new technology for some time, other countries are also using it in their sporting events.

Narrow or wider scope 

In 2022, Munich Regional Court had found that Supponor infringes EP 3 295 663, which covers the “digital superimposition of an image onto another image”. In its judgment, the court had interpreted EP 663 very broadly. According to parties involved in the proceedings, the city’s higher regional court has now interpreted it more narrowly. As such, its judges concluded that the older Supponor technology no longer infringes the patent (case IDs: 6 U 1953/22 and 6 U 1954/22).

Immediately after the decision, AIM Sport lodged an appeal against denial of leave to appeal with the German Federal Court of Justice. It asked the court to review whether this interpretation of the patent was legally permissible. The court is now considering whether to accept the appeal.

Claims in the UK

Ari Laakkonen

The UK Court of Appeal also recently focused on the question of how narrowly or broadly the claims of EP 663 should be understood.

In the UK proceedings, AIM Sport had only asserted EP 663 in a limited version. At the end of April, the court of appeal confirmed the UK High Court’s 2023 ruling that Supponor infringed the patent.

The second-instance court considers the patent invalid in its original, broader version. However, the judges upheld one claim, and because AIM Sport had only brought this claim, Supponor has now failed with its appeal (case ID: CA-2023-000786).

In the UK, too, AIM Sport’s lawsuit is only directed against the older DBRLive technology and not against Supponor Air. However, the latter technology is indirectly the subject of UPC proceedings that AIM Sport launched in July 2023 at the Helsinki local division.

Speed bumps at the UPC

Initially, AIM Sport had opted EP 663 out of the UPC. It then decided to withdraw the opt-out and file a PI and an infringement case in Helsinki. In these proceedings, AIM Sport accuses Supponor of using data collected with the older DBRLive technology to train its AI-based Air technology.

Max von Rospatt

In September 2023, the Helsinki local division heard the PI proceedings and rejected both claims by AIM Sport (case ID: UPC_CFI_214/2023). With reference to the German proceedings, which began before the UPC’s launch, the Helsinki judges decided that AIM Sport should not have been able to withdraw the opt-out.

Therefore, the court dismissed both the PI application and the action on the merits. AIM Sport’s’ appeal is currently pending at the UPC Court of Appeal (case ID: APL_596892/2023).

Deadline dilemma

The appeal case also highlighted confused about the deadline by which AIM Sport should have filed its appeal. In infringement proceedings, the parties have two months to do so, but only 15 days in PI proceedings. The ambiguity arose because the Helsinki local division had actually only heard AIM Sport’s PI application. The PI ruling that AIM Sport’s withdrawal of the opt-out was inadmissible was also decided for the infringement proceeding with the former titled “decision” instead of “order”.

AIM Sport therefore took advantage of the two months to lodge the appeal. Although the party should have done this within 15 days, the UPC Court of Appeal has now decided that the court’s error should not be prejudicial to AIM Sport in this individual case. As such, the court will hear the appeal next, although no date is yet set.

If the court of appeal concludes that AIM Sport’s withdrawal of the opt-out was inadmissible, the UPC lawsuit would be superfluous. However, AIM Sport could then still take legal action against Supponor Air before national courts.

New team for AIM Sport

Noerr partner Ralph Nack has run both the German infringement proceedings and nullity suit for AIM Sport from the start. Nack had already acted for AIM Sport in a battle with Supponor six years ago. At the beginning of the current dispute, patent attorneys from Dutch firm NLO, which filed the patent-in-suit, assisted the Noerr lawyers.

Ralph Nack

In the UK proceedings, Ari Laakkonen and Siddharth Kusumakar from Powell Gilbert are conducting the proceedings. The firm has acted for the company since 2020, when AIM Sport launched parallel proceedings in Germany.

In the UPC proceedings at the Helsinki local division, the AIM Sport team already looked to be expanding. In addition to Noerr and Powell Gilbert, the company has now brought in Max von Rospatt, partner at Düsseldorf IP firm Rospatt Osten Pross.

Johanna Flythström and Mikael Segercrantz, partner of Finnish-Swedish law firm Roschier, were also involved while Max von Rospatt acted again for AIM Sport in the German proceeding alongside Noerr.

Continuity at Supponor

Supponor and Sportfive continue to rely on the teams that represented them in the first instance in Germany and the UK. Gleiss Lutz partner Matthias Sonntag represented Supponor again at the Munich Higher Regional Court. He was also involved in the UPC proceedings in Helsinki.

On the technical side, patent attorneys from Witte Weller & Partner in Stuttgart are running the proceedings. In the UK, Supponor engaged commercial and advisory law firm Ignition Law, which is based in London. Tammy Evans, who is head of dispute resolution, ran the case for the client.

In the UPC proceedings, Supponor relied on a Hogan Lovells team, led by Düsseldorf patent litigator Henrik Lehment, as well as a Finnish team from local full-service law firm Hannes Snellman. Panu Siitonen and Vilhelm Schröder were the lead partners.

German proceedings

For AIM Sport
Noerr (Munich): Ralph Nack (lead), Armin Kühne (both partners); associate: Niclas Gajeck, Valentin Schmidt, Roman Christopher Scheibe
Rospatt Osten Pross (Düsseldorf): Max von Rospatt (partner)
Samson & Partner (Munich): Wolfgang Lippich (lead), Ludwig Alexander von Poswik(both patent attorneys)

For Supponor and Sportfive
Gleiss Lutz (Düsseldorf): Matthias Sonntag, Mischa Krumm; counsel: Benedikt Burger (Stuttgart)
Witte Weller & Partner (Stuttgart): Stephan Keck (patent attorney)

Higher Regional Court Munich, 6th Civil Senate
Lars Meinhardt (presiding judge)

UK proceedings

For AIM Sport
8 New Square (London): Daniel Alexander
11 South Square (London): Edward Cronan
Powell Gilbert (London): Ari Laakkonen, Siddharth Kusumakar (both partners, leads); associates: Claire Robinson, Gabriella Simon

For Supponor
11 South Square (London): Brian Nicholson, David Ivison
Ignition Law (London): Tammy Evans (head of dispute resolution, lead)

England and Wales Court of Appeal, London
Colin Birss (presiding judge), Stephen Males, Stephen Phillips