Litigation for IP infringement in Germany is often preliminary proceedings, which are dangerous because in a few days you get a title with which to stop advertising campaigns and force a competitor to withdraw goods from the market.
What starts the proceedings?
The first step before filing an application with the court for a preliminary injunction ordering the infringer to cease and desist is usually to issuing a warning letter to the infringer with a cease and desist order (Abmahnung). If the infringer has not signed an abandonment statement (Unterlassungserklärung), the entity whose rights have been infringed usually files an an application for an injunction (Einstweilige Verfügung).
The infringer is not informed of the proceedings
These proceedings last from the time the application is filed until the order is issued – if an no oral hearing is held – only a few days. The opponent of the application does not find out about the ongoing proceedings in such a case. He only learns about the possible issuance of an interim order at the the moment the order is served.
In what cases will the court issue a temporary order?
A provisional order is issued when the applicant cites and substantiate the existence of a claim, and there is an urgent need in the case to issue an adjudication. The claim is most often substantiated by means of evidence such as at least documents proving rights (e.g., a decision of the DPMA decision to grant a patent).
Is the case an urgent one?
The main premise for the issuance of a preliminary injunction is the so-called urgency, which is subject to examination by the court on its own motion. The issuance of a preliminary injunction will occur only if there is a danger that the applicant, without issuing an interim order will not be able to assert its claim later successfully.
From when is it in force?
If the prerequisites for issuing a preliminary injunction are met, the court issues it within a few days. The temporary order becomes enforceable from the moment it is served on the other party by the bailiff, who makes it it upon request.
How can you defend against the injunction?
From the preliminary injunction, the party against whom it was issued is entitled to an objection objection (Widerspruch). Its filing is not subject to any time limit. After the objection is filed, the court sets a date for a hearing, which usually begins within one to two months from the filing of the objection. After the hearing, the court issues a judgment, against which the parties are entitled to appeal (Berufung).
Can you defend yourself?
In Germany, in intellectual property cases, the so-called attorney’s compulsion applies in every instance, that is, the parties must be represented by a attorney. Only attorneys who are members of the German Bar Associations may appear before German courts. Because of the far-reaching specialization of attorneys in Germany, you should have your case handled by an attorney who specializes in IP law. Specialized attorneys in Germany hold the titles of certified specialist attorney (Fachanwalt für gewerblichen Rechtsschutz).
Grau Rechtsanwälte PartGmbB represents clients in litigation in the field of intellectual property law, including trademark law, patent law, design law and unfair competition law throughout Germany. The attorneys have many years of experience and specialize as certified specialist attorneys in intellectual property matters.
If you have any further questions, please contact our law firm on +49 (0) 40 180 364 020 lub office@graulaw.eu.
