BUSINESS BRIEF: GERMANY
“AS GERMANY IS EUROPE’S LARGEST NATIONAL MARKET, COUNTERFEITING IS A BIG ISSUE. IN 2013, GERMAN CUSTOMS SEIZED COUNTERFEIT PRODUCTS WORTH AROUND €1.34 BILLION.”
Are there any nuances in the trademark law(s) that foreign companies should be aware of? Besides the common defence of insufficient use of earlier trademarks for more than five years before the younger mark is published, German trademark law offers a second plea of insufficient use, which can be raised simultaneously.
Counterfeiting How big a problem is counterfeiting in your jurisdiction? As Germany is Europe’s largest national market, counterfeiting is a big issue. In 2013, German customs seized counterfeit products worth around €1.34 billion. Germany has a strict law and well-established court practice against counterfeiting.
What industries are particularly at threat? Since internet sales are thriving, nearly every sector of the economy is affected. Te top categories of articles detained by customs are medicines, packaging material, cigarettes and products for daily use, such as clothes and cosmetics.
What are the best strategies for dealing with the problem? Protection technologies, such as holograms and security labels, can be used initially. To detect counterfeiting it is essential to observe
www.worldipreview.com
the relevant market, for example by controlling internet sales platforms. Legally, preliminary injunction proceedings and customs applications for border measures proceedings are most effective.
How can public-private partnerships to tackle counterfeiting be improved? Cooperation with German customs, the police and the public prosecutor works very well. Close and direct communication is necessary and always possible.
Copyright
How should people ensure they are protected against copyright infringement? Copyright protection exists for any kind of manmade work, and covers artistic works of any kind from novels and paintings or movies (collective works) and computer programs, provided the individual work is a human’s mental creation. Te creativity threshold is normally not
very high, except for applied art, where—as a general rule—technically imposed features are disregarded.
What is the best way to deal with infringement? 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. First instance copyright cases are not likely to recover more than a five-digit amount.
General Are there any other IP developments we should know about? Te political process to establish a European unitary
patent
and the corresponding
Unified Patent Court is due to be finalised in 2016/2017. So far, the existing German national infringement proceedings continue to prove their quality by being the venue of choice for foreign plaintiffs. Te opposition period for German patents has been extended from three to nine months.
Gottfried Schüll, Erik Schäfer, Ulrike Alice Ulrich and Mathias Karlhuber are partners at Cohausz & Florack, which is a patent attorney and attorneys-at-law firm based in Germany. Te consulting services include prosecution, licensing and litigation of IP rights. Supported fields of technology include mechanical engineering, life sciences, chemical engineering, electrical engineering and information technology. Tey can be contacted at:
mail@cohausz-florack.de
World Intellectual Property Review Annual 2015
99
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140