Spirit levels: original left, fake right © APM e.V.
Trade fairs reflect the market and concentrate an industry’s entire range of products. Thus, trade fairs provide a comprehensive overview for visitors as well as for exhibitors themselves. Nowhere else is it easier to compare your own products with those of competitors than at trade fairs. It comes as no surprise that exhibitors often only become aware of unauthorised copies of their products when at trade fairs.
In Germany, a basic freedom to make copies exists. That means that, as a rule, anyone can copy another product, process or brand. Only the owner of special intellectual property rights can forbid a third party to reproduce and commercially exploit his protected product or protected brand. In addition to prohibiting the manufacture of goods that owner can also prohibit a third party from marketing, advertising or offering unauthorised copies for sale. Furthermore, he can demand the party infringing his intellectual property rights to desist from copying his products and can also demand compensation for goods already sold. He has a right to information on the origin of the products and can even call for the destruction of any existing goods.
Patents are granted for inventions, which are defined as follows: they must be new, based on an invention and commercially exploitable. A patent grants the inventor the right, for a specified period of time, to prevent others from using, manufacturing, selling or importing his invention. In return, the inventor must disclose the details of his invention in a patent specification which must be made publicly available.
As with a patent, anything registered as a utility model must be new, based on an invention and must be commercially exploitable. It can be quicker and more cost-effective to register a utility model than a patent. However, registration of a utility model takes place without it being checked for novelty or whether it constitutes an act of invention. Thus it is possible that the rights to a registered utility model may be fictitious and cannot be enforced in the event of a dispute.
All symbols, in particular words, images or presentations which lend themselves to distinguishing a company’s goods or services from those of other companies can be protected as a brand.
A registered design can be used to protect a new product design. As with a utility model, the German Patent and Trademark Office does not check whether the registered design actually fulfils material protection requirements (in particular, novelty and uniqueness).
When preparing for a trade fair you can take steps in advance to avoid unpleasant surprises later on. Accordingly, you should first of all contact a lawyer. In order to ensure a product or a brand is protected against imitation you must own the protective rights. You should bring all the documents to the trade fair which prove that you own the intellectual property rights (originals or authenticated copies of the protective rights certificate as well as, if necessary, previously obtained declarations to cease and desist, or court judgements against the party responsible for unauthorised copies). Furthermore, you should make sure that, if necessary, you can contact a lawyer at the venue of the event, even at the weekend. If you are in possession of actual information that a competitor intends to exhibit unauthorised copies of your protected products you can submit an application for goods to be seized at the national border prior to the trade fair. In such cases customs authorities may remove goods infringing intellectual property rights from circulation – even after they have crossed the border.
If you become aware that unauthorised copies of your protected products are being exhibited at a fair, with the help of a lawyer you can issue a warning to the party responsible for unauthorised copies offering him to sign a declaration of discontinuance subject to penalty. Should he refuse to do so you can file for a court injunction to prohibit him from exhibiting the products infringing your protective rights.
In exceptional cases imitating goods can also be illegal even without the existence of protective rights under the terms of law against unfair competition. In such cases a trader would have to imitate a competitor’s product that possessed unique competitive features and to offer it for sale on the market. Furthermore, special circumstances would have to exist which made the trader’s behaviour appear unfair. Only if the above strict conditions were fulfilled would the protection which competition law affords render the basic freedom to make copies void.
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