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New possibilities for IP owners in Germany
Enforcement Directive 2004/48/EC implemented in German Law. As of September 1, 2008, the enforcement directive 2004/48/EC was implemented in German Law. The underlying idea of the directive is to ensure that the substantive law on intellectual property is applied effectively in the European Community. In this respect, the means of enforcing intellectual property have been amended. Implementation in German law therefore has a great impact on most of the laws concerning intellectual property, inter alia on patent law, design law, trademark law and copyright law. The latest amendments improve the position of the owners of intellectual property significantly.
A first major aim of the enforcement directive is to reduce the disparity in information existing between the infringer and the owner of intellectual property. The new provisions (e.g. § 140 b sec. II German patent act, § 46 sec. II German design act) accordingly extend the circle of those persons being obliged to render account. In future, not only the infringer himself but also certain commercially acting third parties (i.e. parties not infringing) may be forced to render account in case of evident infringements and if they possess infringing products to a commercial extent. These third parties are now obliged - as the infringer himself - to provide information regarding the origin and distribution networks of the goods or services which infringe an intellectual property right.
A second major aim of the enforcement directive is to ensure that infringing products could be removed from the market when their distribution channel can still be tracked and they are within the reach of the infringer. In Germany, the claim for destruction (e.g. § 140a sec. I German patent act, § 43 sec. I German design act) has now been supplemented by new claims (e.g. § 140 a sec. III German patent act, § 43 sec. II German design act) for recall of products and their removal from all distribution channels. Whereas the first decisions regarding the correct interpretation of these new provisions have already been pronounced, a number of questions still remain to be answered. Wildanger Kehrwald Graf v. Schwerin & Partners are involved in several law suits currently pending in which further details will presumably become clear. One of the most important questions still awaiting clarification relates to whether the claim for recall and removal is confined to those products on which the owner of the intellectual property has an enforceable claim for return, or whether the infringer is, furthermore, obliged to take certain measures in order to have the products returned, e.g. by offering the customer reimbursement of the purchase price and all further costs incurred.
Wildanger Kehrwald Graf v. Schwerin & Partners is a German law firm focused entirely on the area of intellectual property protection. It was founded 40 years ago by Günther Wildanger, one of the most experienced patent litigation attorneys in Germany. Ever since, the firm has played an important role in establishing Germany, in particular Düsseldorf, as a leading jurisdiction for patent litigation. At a cautious estimate, the partners probably represented parties in more than 1,000 patent infringement suits, very often with international backgrounds, and in many cases with the greatest economic significance. Our clients not only benefit from our great experience. They can rely on the partner representing them to take a very intensive, personal and trustworthy interest in them. Because we know that this is what it takes to be successful in patent litigations.
Wildanger Kehrwald Graf v. Schwerin & Partners count among their clients some of the most important global players from all the important industrial nations in Europe and Asia and, of course, the U.S. We have represented parties from nearly all areas of industry, technology and science, e.g. automotive, machine and electrical engineering, electronics, semi-conductor industry, biotechnology, the chemical, pharmaceutical and medical industries, computers, telecommunication.
Dipl.-Phys. Elmar Knauf
Attorney-at-law (Germany)
Attorneys-at-law Wildanger Kehrwald Graf v. Schwerin & Partners