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Warning design infringement
A competitor is using your design? Have you had a product with a special design protected by the German Patent and Trademark Office ("DPMA") as a registered design and have you noticed that the same or a similar design has been entered in the register? Do you notice that your design is copied by a competitor and sold on the market? We'll tell you how you can take action against the infringement of your design!
If you have a registered design, you have a so-called exclusive right. No one else may use, manufacture, or offer your design without your consent. Only you decide whether you grant a third party a right of use in the sense of a license, for example.
How do I even find out about a design violation?
You must take action yourself so that unauthorized use of your design can be determined. When a competitor applies for a new design, the DPMA does not check whether the application violates your design law. Instead, designs are simply entered in the register.
Every design owner is therefore advised to regularly search the design register for similar designs. In addition, it is also advisable to go through the various trademark registers, because a trademark is often hidden behind a design.
You should also keep an eye on competitors when they launch new products with new designs. Often they simply copied your design and did not even bother to apply for registration with the DPMA. It is also not uncommon for the competitor to use the design on the market at the same time as registering with the DPMA. Only through constant market surveillance can plagiarism be discovered and action taken against it.
What do I do if a third party has registered an identical or similar design?
If you discover that the DPMA has registered an identical or similar design from a third party, you should submit an application to the DPMA as soon as possible for a declaration or declaration of invalidity in accordance with Section 33 of the Law on the Legal Protection of Design ("DesignG") ( so-called nullity proceedings). In contrast to trademark law, there is no opposition procedure available.
The nullity procedure is generally subject to a fee. There are fees of 300 euros. The application must be accompanied by a justification in which the reasons for invalidity are clearly stated.
After the application for invalidity has been submitted, the DPMA will inform the owner of the registered design of the application for invalidity. If the owner does not object within one month, the DPMA will have the invalidity determined. If, on the other hand, the owner of the newly registered design takes action and objects, the nullity proceedings will be continued and the DPMA will decide on the application on the basis of the arguments presented.
Invalidity proceedings lead to the deletion of the design
If the nullity proceedings are successful, the identical or similar design will be deleted from the register. A deletion takes place in particular if the design that is similar to your design is not new or has no individual character or if one of the reasons from §§ 34, 33 Paragraph 1 DesignG are relevant. The nullity proceedings before the DPMA offer the possibility of having registered designs deleted relatively quickly and inexpensively.
However, you should note that the unsuccessful party has to bear the costs of the nullity proceedings. The costs of the other party must also be assumed in accordance with Section 34a (5) DesignG.
The decisions of the DPMA can be appealed to the Federal Patent Court.
Since 2014, the nullity proceedings have no longer been conducted before the regional court, but only before the DPMA. The courts only judge the nullity of a design in the context of the counterclaim. This is a constellation in which a registered owner of a design is sued for infringement of other design rights. In the ongoing infringement proceedings, the defendant design owner is filing a counterclaim and alleging that the registered design of the plaintiff does not meet the protection requirements, i. H. is not new and has no peculiarity.
What claims do I have against the infringer?
In the case constellation in which a third party has registered an identical or similar design, further claims can be made in addition to the initiation of nullity proceedings, provided that the infringer sells the products with the design on the market. Even in the constellation in which the copier did not even bother to register its design, but sold it directly on the market without being asked, the most varied of requirements according to the DesignG come into consideration.
You can assert a claim for removal and an injunction according to Section 42 (1) DesignG, a claim for damages according to Section 42 (2) DesignG, a right to information, a claim to destruction or a right to surrender according to Section 43 DesignG.
With the help of the removal claim, you can demand that the infringer remove the infringement, for example by taking measures such as correcting catalogs or informing its customers.
The specific measures depend on the type and scope of the violation. The infringer can freely choose which measure to take. As the design owner, you are entitled to removal claims even if the infringer is not at fault.
You are also entitled to an injunction. You can demand that the infringer refrain from violating the law in the future.
The right to cease and desist is also no fault and serves to prevent a future violation. There must be a risk of repetition of the injury or an imminent risk of initial injury.
Claim for damages
In addition, you could be entitled to a claim for damages if the design infringer intentionally or negligently copied your design.
The design infringer usually has to pay you a sum of money. The amount usually corresponds to the profit made by the infringer. For this, the imitator must disclose what sales he has achieved through the violation of the law. Alternatively, the amount of the amount can also be based on a license analogy, i.e. H. a reasonable license fee will be charged or you can request compensation for the loss of income.
Destruction claim or surrender claim
Annihilation claims are also an effective means. They mean that plagiarism has to be destroyed and can no longer be offered on the market.
Instead of the right to destruction, it can also be demanded that the plagiarism be given to the design owner. The owner of the design must then pay the infringer an appropriate remuneration, but this may not be higher than the production costs of the product.
How should I proceed against copying the design?
If you find out that a competitor is copying your design, you can take legal action against the design infringer both out of court and in court.
Out of court, you can first send the infringer an authorization request or a warning. An immediate lawsuit is therefore not always necessary. Proceeding out of court has the advantage of avoiding expensive legal proceedings.
The authorization request is a milder means than a warning. The infringer is only politely asked why he is entitled to use the design. If the infringer shows understanding, the result should be recorded in a contract.
However, if the infringer refuses to reach an amicable settlement, you can still take legal action in the civil courts.
An authorization request can be advantageous because the opponent cannot assert any claims for damages if it is subsequently established that the authorization request was unjustified.
Another popular extrajudicial instrument is the warning. With the help of the warning, the infringer can be informed of the design infringement in an extrajudicial way.
He is requested to submit a declaration of cease and desist subject to penalties within a certain period under threat of a contractual penalty. In the event of refusal to submit a declaration of cease and desist with penalties, the initiation of interim injunction proceedings can be threatened. In addition, pursuant to Section 46 of the DesignG, the infringer can be asked to provide information about the type and scope of the infringing act that has already been committed. In addition, the infringer can be asked to pay damages.
The formulation of a declaration of cease and desist with penalties is sometimes difficult, so that legal help should urgently be sought at this point.
Danger! Please note urgently that a wrongly accused design infringer can assert his own claim for damages against the warning party.
If the extrajudicial mechanisms do not help and the infringer refuses to give a declaration of cease and desist, a lawsuit in the ordinary civil courts can be considered.
The design chambers of the regional courts are responsible for infringement suits.
A lawyer is required before these, so that a lawyer who specializes in design law should be commissioned now at the latest.
If a lawsuit does not go through quickly enough and there is a need for urgency, then you can still apply for an injunction.
Applying for an injunction is particularly necessary if plagiarism of your design is presented and sold at trade fairs. You can then very quickly forbid the infringer from selling the counterfeit products.
In principle, the court is primarily responsible for the application for an interim injunction, so that the design chambers of the regional courts must be called upon again here. Provisional injunctions have proven to be very beneficial as they are issued without hearing the opponent.
If you have threatened this in the warning before applying for the interim injunction, you must expect that the opponent has deposited a preventive protective letter with the court. The opponent will try to ensure that the court also takes his arguments into account and that he is given a legal hearing.
Danger! Caution is again advised when applying for an injunction. If the temporary injunction turns out to be unjustified in retrospect, the wrongly accused can assert a claim for damages.
Furthermore, in the DesignG, copying a registered design without the consent of the owner of the design rights is a criminal offense. An intentional violation is therefore punishable.
To do this, as the person entitled to apply, you must submit an application for prosecution to the public prosecutor's office. Only the express declaration of the applicant leads to the criminal offense being prosecuted at all.
A three-month period after knowledge of the offense according to Section 77b of the Criminal Code (“StGB”) applies to the application.
Request for border seizure
The customs authorities play a crucial role in placing plagiarism on the market. These protect and monitor the import and export of products on the European market. As a design owner, you can submit an application for border seizure to the customs authorities in accordance with Section 55 DesignG.
The customs authorities will then inform you how many products are imported and where (e.g. China) they come from. You will also receive an indication of where the products are stored so that they can be subjected to a detailed examination.
If you discover a violation of your design, you can request that the products be destroyed. If it is determined that there is no violation, customs will release the products again.
Danger! Here, too, it should be noted that a seizure that you wrongly initiated from the start can lead to the opponent demanding compensation for the damage caused.
Immediate help from the lawyer
Do you need legal advice? Call us for a free initial assessment or use our contact form.
Contact us now or 0221/951 563 0
How WBS can help you
If you discover that your design has been infringed by a third party, you need to act quickly to keep the damage to your image and loss of sales as low as possible. In addition, delayed responses may result in your claims becoming statute-barred or accused of having tolerated the infringement.
The DesignG offers many possibilities to take efficient action against imitators. A distinction must be made between cases in which someone else has registered their design with the DPMA and cases in which an identical or similar design is used directly on the market. While constant monitoring of the register is necessary in the first cases, only constant market monitoring helps in the other cases.
The procedure against a design infringer is a complicated and complex matter that raises many special questions in and out of court. You should therefore seek advice from a lawyer specializing in design law.
In this regard, we are available around the clock and support you with all questions relating to the procedure against design infringers.
We're here to help! The team of experts will be happy to answer any questions you may have.
Call us at 0221/951 563 0 (advice nationwide) at.
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