Industrial Property Protection
The term of Industrial Property Protection is a general term which comprises a variety of distinct fields of law. What is typical for these is the fact that they usually have to do with rights and titles which were developed in the course or as part of business activities. Amongst other fields it also includes the field of competition law in the sense of fair competition practices. What it is, however, mainly concerned with is the protection of intellectual property in the broadest sense of the term. Other than the field of copyright law which is a special field in itself, it also covers the special fields of trademark law, patent law, utility model law and registered design law. In so far as no absolute titles are available it is also possible to achieve protection by way of auxiliary protection of fair competition (Section 4 No. 9 Unfair Competition Act). In essence all of these laws focus specifically on the protection of an individual’s or a company’s own products and services against pirating imitations.
In case of non-compliance with any of these legal provisions the first thing to which recourse is frequently had is an ad hortatory letter, which entails the recipient’s liability to pay for its costs (Section 12 sub-section 2 of the German Unfair Competition Act). An ad hortatory letter is to serve for the purpose of drawing the infringing party’s attention to the infringement committed by such party so that the infringing party will henceforth refrain from committing such an infringement. The infringing party may then in the first place eliminate the risk of being sued for repeated infringement only by submitting a negative covenant providing for a penalty in case of non-compliance. In cases where the infringing party fails to submit such a negative covenant the party has to anticipate that it will be sued by way of judicial proceedings. If the infringement is justified the Courts of Justice will normally grant an interim injunction. If a party wishes to oppose such an interim injunction it will have to lodge an objection to the same. It should, however, be noted that lawsuits concerning matters of industrial property protection are normally quite expensive, as the underlying value which is used as a basis for calculating both lawyers’ and Court fees is usually very high.
On the other hand this means to say that it is necessary to seek a lawyer’s counsel and advice especially prior to proceeding with planned advertising campaigns or with the design of articles. As a matter of fact it will in many cases be possible to determine in advance and while still being in the planning phase whether such a planned measure will infringe on any third party’s rights.
If you have any questions pertaining to the field of industrial property protection we shall be pleased to help you.