Trade fairs are a mirror of the market. They bring together a sector's range of products and services in a concentrated form. In this way, trade fairs provide a comprehensive overview of the market for visitors, but also for the exhibitors themselves. Nowhere is it easier to compare one's own products with those of competitors than at trade fairs. It is therefore not surprising that it is at trade fairs that exhibitors repeatedly learn of counterfeit products for the first time.

When are counterfeits illegal?

In Germany, the principle of freedom of imitation applies. This means that anyone may copy other people's products, processes and trade marks.

Only the owner of special property rights can prohibit third parties from copying and commercially using their protected product or trade mark. In addition to production, the owner of the property rights can also prohibit distribution by third parties or the mere offering or advertising of the counterfeited products. He can also demand that the plagiariser refrain from infringing the property rights and demand compensation for goods already distributed. He has a right to information about the origin of the products and can even obtain the destruction of existing products.

What are industrial property rights?

• Patents
  Patents are granted for inventions that are new, involve an inventive step and are industrially applicable. A patent grants the inventor the right to prevent others from using, manufacturing, selling or importing his invention for a certain period of time. In return, the inventor must disclose the details of his invention in a patent specification that is accessible to everyone.
• Utility model
  As with a patent, the subject matter of a utility model application must be new, involve an inventive step and be capable of industrial application. Utility models can be registered faster and more cost-effectively than patents. However, registration takes place without a substantive examination of novelty and the existence of an inventive step. The registered utility model may therefore be a "pseudo right" that cannot be enforced in the event of a dispute.
• Trade marks
  All signs, in particular words, images or designs, which are capable of distinguishing the goods or services of one company from those of other companies can be protected as trade marks.
• Registered design
  Registered designs protect the colour and shape of industrially or manually producible products. However, as with utility models, the German Patent and Trade Mark Office does not check whether the registered design actually fulfils the material requirements for protection (in particular novelty and individual character) when it is entered in the register it maintains.

For many trade fairs in Germany, so-called exhibition priority can be claimed when applying for utility models, trade marks and registered designs. If an exhibitor applies to the DPMA for industrial property rights for an exhibit shown by him after such a trade fair, the first day of the trade fair is the filing date at the DPMA that establishes the industrial property rights. For this purpose, an exhibition certificate issued by the trade fair management at the beginning of the trade fair must be submitted to the DPMA together with the application documents. Another requirement is that the application for the IP rights must be filed within six months of the first exhibition. The relevant trade fairs are regularly published in the Federal Law Gazette.

What can I do before the trade fair begins?

You can take measures in advance of a trade fair to avoid unpleasant surprises later on. To do this, you should first contact a lawyer. In order to effectively protect a product or trade mark from imitators, you must have a property right for it. You should bring all documents proving that you are the owner of the property right (originals or certified copies of the property right certificate as well as any cease-and-desist declarations or judgements against the plagiarist) to the trade fair. Furthermore, make sure that you can contact a lawyer at the venue of the event, even at the weekend if necessary.

If you have concrete information that a competitor intends to exhibit imitations of your protected products, you can file an application for the initiation of border seizure proceedings before the trade fair. The customs authorities can then use the border seizure procedure to remove infringing goods from circulation - even after they have crossed the border.

What can I do during the trade fair?

If you discover that counterfeit copies of your protected products are being exhibited at a trade fair, you can first send the counterfeiter a warning letter with the support of your lawyer and offer to issue a cease-and-desist declaration with a penalty clause. If the counterfeiter does not wish to sign such a declaration, you can use a court injunction to prohibit the plagiariser from exhibiting the infringing products.

What can I do if I do not have a property right?

In exceptional cases, the counterfeiting of goods may be unlawful under the provisions of the Act against Unfair Competition even if no industrial property rights exist. This presupposes that an entrepreneur imitates a competitor's product with a competitive character and offers it on the market. In addition, there must be special circumstances that make the entrepreneur's behaviour appear unfair. Only if these strict conditions are met is the principle of freedom of imitation breached by this protection under competition law.

What can the trade fair organiser do?

Trade fair organisers in Germany will be happy to support you in making your trade fair presentation a success. You should therefore inform the organiser before any legal disputes arise on the exhibition grounds. This is the only way the organiser can mediate in a dispute. However, the organiser cannot assert your rights against third parties, as he is not the owner of the property rights. Therefore, as long as no enforceable title is presented to him, he cannot close any exhibitors' stands.