JUrISdIctIOn repOrt: GermAnY
QUAntIFYInG dAmAGeS FOr
cOpYrIGHt InFrInGement
Jens Künzel
Krieger Mes & Graf v. der Groeben
Most parents in the industrialised world will know the Tripp-Trapp
“tHe trIpp-trApp cHAIr cASe AddreSSed
chair—a children’s chair made of wood from a simple but memorable
SOme OF tHe prObLemS tHAt HAVe ArISen
design advertised by its original manufacturer as the “chair which grows
with your child”.
In cASeS InVOLVInG tHe QUAntIFIcAtIOn
OF dAmAGeS FOr pAtent, deSIGn And
The success of the original chair has spurred many competitors to
market and distribute chairs whose design is similar to the original.
cOpYrIGHt InFrInGement.”
The Tripp-Trapp Chair case decided by the Federal Supreme Court of
Germany on May 14, 2009 concerns one of these ‘copies’. The defendant
had not contested the evaluation of the Appeal Court (Hanseatisches
Oberlandesgericht, Hamburg) that the original Tripp-Trapp chair enjoys
copyright protection as a “work of applied art”. The subject matter of the
case concerned the computation of quantified damages for copyright
infringement. In that respect, the decision of the Federal Supreme Court
will not only affect copyright cases, but all cases involving the infringement
of intellectual property rights.
but also their technical function, an assumption that the entire profits
In principle, according to German law, the owner of an intellectual
made with such a product are attributable to the copied design cannot be
property right may quantify his damages in one of three ways. First, he
sustained. The quota of the design that has contributed to the customers’
may quantify the damages on the basis of a licence rate that reasonable
decision to buy the product should be weighed according to some of the
parties would have agreed on. Second, he may claim the profits he lost as a
following factors. First, the kind of product in question is decisive; for
consequence of the infringement. This is widely regarded as unsatisfactory
instance, the technical function may be more important for pieces of
as the plaintiff must establish that he lost profit as the result of the
furniture than for jewellery. Second, what is arguably not relevant is the
infringement. Therefore, in recent years, owners of intellectual property
fact that the design in question makes use in part of the prior art.
rights have mostly chosen to quantify the damages in a third way: on the
basis of the profits that the ‘infringer’ made.
Another problem addressed by the court concerned whether the IP rights
owner may claim the profits made by several infringers in a supply chain
A 2001 decision of the Federal Supreme Court regarding the Overhead
(e.g. manufacturer, wholesaler, retailer). The Federal Supreme Court held
Costs Quota (Gemeinkostenanteil) established that the defendant infringer
that, in principle, each of the infringers may be sued for damages and the
must not reduce the profits claimed by the plaintiff by deducting a quota
owner may claim the profits made by each. However, if the manufacturer
of overhead costs. Instead, only costs that could be precisely attributed
has already reimbursed its customers for the damages, the manufacturer
to the infringing products could be deducted. This decision potentially
may deduct its reimbursement payments from the damages claimed. If
offered a sharp increase in the damages that could be claimed by owners
the rights owner first sues the manufacturer and collects full damages,
of intellectual property rights.
and then sues the customers and collects again, with the result that the
manufacturer has to reimburse its customers, the manufacturer may
The Tripp-Trapp chair case addressed some of the problems that have
claim the amount it that reimbursed to its customers. This means the
arisen in cases involving the quantification of damages for patent, design
profit made by the infringing manufacturer that is attributable to the
and copyright infringement. First of all, the court stressed that only the
infringement is reduced to the extent that this infringer has to reimburse
part of the infringer’s profits that can be attributed to the infringement
its customers for the damages that these customers must pay as a result
can be claimed as damages. While this rule is generally accepted, in
of their infringement.
practice, it has presented problems, i.e. how can the part of the infringer’s
profits attributed to the infringement be assessed.
The Tripp-Trapp Chair case gives some clues as to which aspects are
relevant in cases of copyright infringement. First, the court says that Jens Künzel is a partner at Krieger Mes & Graf v. der Groeben. He can be
since works of applied art are not only important in terms of their design, contacted at: jens.kuenzel@krieger-mes.de
60 World Intellectual property review September/October 2009 www.worldipreview.com
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