BUSINESS BRIEF: GERMANY
computer programs). Germany protects the moral rights of authors.
How should people ensure they are protected against copyright infringement?
Copyright protection exists for any kind of man-made work, and covers artistic works of any kind from novels and paintings to dancing performances or movies (collective works) and computer programs, provided the individual work is a human individual mental creation that distinguishes itself sufficiently when compared to prior art in the concerned field.
Te creativity threshold is normally not very high, except for applied art where—as a general rule— technically imposed features are disregarded. A November 2013 precedent has substantially changed the legal situation. Prior to this decision applied art was considered protected by copyright only if it was an outstanding creative achievement.
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 widespread use in Germany of ex parte injunctive relief comprising an order to cease and desist also has an important place in copyright. Recoverable costs are determined by the law’s governing court fees and attorney fees. Recoverable costs are borne (proportionally) by the loser.
First instance copyright cases are not very likely to exceed a recoverable five-digit euro amount. Party representation fees exceeding the recoverable amount require a fee agreement.
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, European
www.worldipreview.com
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 are thriving, basically every sector of
the economy is affected by
counterfeiting. Te 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, trading of the counterfeit products in the national market is prevented and the destruction of these goods is enabled.
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 are due to be finalised in 2014/2015. Te grant of the first Unitary Patent is expected in 2015 at the earliest. Te German stakeholders are generally supportive of the new system. So far, the existing German national infringement proceedings continue to prove their quality
Cohausz & Florack is a patent attorney and attorneys-at-law firm based in Germany. Te 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 2014 119
“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.”
by the acceptance of German jurisdiction by the parties involved. At the same time, parties abusing the enforcement possibilities do not play any role before the German courts.
On January 1, 2014 the German Geschmacksmuster Law got a new name: Design Law. Beside that name change, validity proceedings before
the DPMA have been
installed. Te validity of a design registered without examination of its merits can now be contested in front of the patent office without the necessity to initiate civil proceedings stipulated by the old law.
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