BUSINESS BRIEF: GERMANY
Have there been any changes to the trademarks law(s) in the last 12 months?
Tere haven’t been changes to the national trademarks law in the last 12 months. Te latest version of the German Trademark Law was amended in November 2011.
Copyright
What are the key challenges to copyright holders in your jurisdiction? Copyright comprises a bundle of rights coming into existence when the protected work has been created by operation of the law. International treaties (Berne Convention, WCT, TRIPS, etc) afford the mutual recognition of foreign copyrights by granting the same protection as a German resident would have under the German Copyright Act. Some aspects of German copyright law are harmonised EU law (eg, that for computer programs). Germany protects the moral rights of authors.
How should people ensure they are protected against copyright infringement?
Basically, copyright protection exists for any kind of manmade work, ie, it covers artistic works of any kind from novels, paintings, music, to dancing performances or movies (collective works), but also
computer programs, drawings, applied
design, speeches, photographs, always provided that the individual work is an individual mental creation that distinguishes itself sufficiently when being compared to prior art.
Te creativity threshold is normally not very high, except for applied art where, according to precedent, it must overtop the average in the field. Te reason is that (registered) design protection is available below the higher threshold.
What is the best way to deal with infringement, and what are the costs associated with it?
Important remedies are cease and desist claims, claims for damages, rendering of account, and destruction. Te German peculiarity of widespread
www.worldipreview.com
“WHILE GERMAN CIVIL PATENT LITIGATION COURTS PROVIDE FAST, FORESEEABLE AND TYPICALLY PATENTEE-FRIENDLY DECISIONS AT COMPARATIVELY LOW COSTS, THE KEY THREAT IS INVALIDATION OF THE PATENT.”
use of ex parte injunctive relief with cease and desist orders also play an important role in copyright.
Counterfeiting
How big a problem is counterfeiting in your jurisdiction? As Germany is Europe’s largest national market, counterfeiting is a big issue. In 2011 the European customs seized counterfeit products worth around €1.3 billion. Germany has a strict law and well- established court practice against counterfeiting, not only to protect the economy and especially consumers, but also to avoid the loss of significant tax revenues.
What industries are particularly at threat? Since Internet sales prosper, basically every sector of
the economy is affected by counterfeiting.
Top categories of articles stopped by customs were medicines, packaging material, cigarettes and products for daily use, such as clothes and cosmetics.
What are the best strategies for dealing with the problem?
To prevent counterfeiting protection technologies, such as holograms and security labels, can be used initially. To detect counterfeiting it is essential to observe the relevant market, for example by controlling fairs and Internet sales platforms. Legally,
preliminary injunction proceedings
and customs applications for border measure proceedings under the EU Customs Regulation or German IP law are most effective and guarantee a wide protection. As a result trade in the counterfeit products in the national market is prevented and the destruction of these goods is enabled.
Cohausz & Florack is a patent attorney and attorneys-at-law firm based in Germany. Consulting services include prosecution, licensing and litigation of IP rights and adjacent areas such as unfair competition or
contractual matters.
Supported fields of technology are mechanical engineering, materials, life sciences, chemical engineering, electrical engineering, information technology and mechatronics.
World Intellectual Property Review Annual 2013 119 General
Are there any legislative changes to the IP regime that would make life easier for businesses?
Te political process to establish a European Unitary Patent and the corresponding Unified Patent Court seem about to become finalised in 2013/2014. Te grant of the first UP is expected for 2014. Germany is expected to establish three to four courts of first instance. A division competent for mechanical engineering-related cases of the court of appeal is to be established in Munich.
Te German copyright law has been amended to grant an ancillary copyright for press publishers. According to the new regulations news made available by news aggregators and web search engines induce fees in favour of the press publishers. So-called ‘snippets’ shall not be covered. Te fees would be collected by a central clearinghouse.
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