Download Enforcing Intellectual Property Rights in German Private Law: Mechanisms and Remedies and more Slides Civil Law in PDF only on Docsity! Enforcement of Intellectual Property Rights under German Private Law Docsity.com Intellectual Property = „geistige Eigentumsrechte“? • In German, used to be a colloquial term only • Analogy to property was thought to be inappropriate • Renaissance of the term now via American and European law • Pure semantics? Yes and no... Docsity.com Sources of the applicable law • Civil Procedure Act (Zivilprozessordnung) • Statutes concerning the relevant IP right (Patent Act, Copyright Act, etc.) • Civil Code (Bürgerliches Gesetzbuch, BGB) • Case law Docsity.com Fact-finding during civil litigation Under the Code of Civil Procedure (ZPO) • each party is obliged to comment on sufficiently detailed (“substantiated”) allegations by the other party, Section 138 (3) ZPO • at the request of one party the court can order the other party or a third person to present documents or other evidence to the court (Sections 142 and 144 ZPO) Rights to be informed under the BGB and IP laws • against the infringer • in some cases, against a third party who has made the infringement possible • often balancing of interests by the courts Docsity.com Rights to be informed • Scope: – Extent of the infringing activities – Identity of other infringers (suppliers, commercial customers) • Form: – Statement by the infringer; no access to infringer’s business files for the rightholder – Court can order confidential data to be disclosed only to a third party who is under a professional duty to secrecy (usually, an accountant) • Time: – If the request for information is declined the rightholder usually needs to obtain a final court decision confirming his right to be informed – In exceptional cases the right to be informed can be enforced through an interim injunction Docsity.com Directive 2004/48: An overview • Injunctions mandatory; possibly extension of third parties’ liability • Computation of damages: few and comparatively vague provisions, will probably not entail any changes to German law • Detailed provisions on the fact-finding process • Other (codes of conduct for the industry, publication of court decisions, et al.) Docsity.com Evidence (Art. 6) • Each party can file for the court to order the other party to present evidence to the court • Infringements on a commercial scale: Courts can order one party to present bank, financial and commercial documents Docsity.com Measures for preserving evidence (Art. 7) • Orders against the alleged infringer • Rightholder needs to present “reasonably available evidence to support his claims” • Then „prompt and effective provisional measures“, e. g., the seizure of infringing goods, materials used for their production or distribution and documents relating thereto • Without the other party having been heard beforehand if necessary, in particular – if any delay is likely to cause irreparable harm – or if there is a demonstrable risk of evidence being destroyed Docsity.com
