What actually is Intellectual Property?

Intellectual property describes absolute rights on intangible goods. It refers to the intellectual property rights such as patent, trademark, design patent, utility patent, or copyright.
A listing of these rights can be taken from the WTO-Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

Why is Intellectual Property and its protection so important?

Germany is a country with little natural resources, a "nation of poets and philosophers", an export champion, as a country of "hidden champions". Therefore, Intellectual Property and its protection is of particular interest. Germany is more dependent than others on the creativity and inventiveness of its businesses.

According to a survey (of 800 companies) by the communication agency fischer Appelt, innovation, inventive talent, research, and development are the most frequently named qualities which most effectively face times of crises.

But what is the appeal for businesses to invest in research and development, if its results and innovations are not protected?

That is why respect for Intellectual Property is essential. Intellectual Property provides competitiveness and progress. Intellectual Property is the asset of a knowledge-based and future-oriented society.

What is a trademark?

A trademark constitutes an instrument of designation to distinguish goods or services of a company from the ones of other companies. When spotting such a sign on a product or in the documents of the offered goods or services, one will associate it with a particular producer or supplier.

For instance, when buying a Nivea crème everybody knows that this crème is attributed to a certain producer, although one might not know its name.
Trademark protection is obained via registration at the public registration body (trademark office) or via use (see Overview of Intellectual Property Rights).
By the way, German Trademark Law also protects business identifiers and geographical indications.

Business identifiers contain business signs and work titles. Business signs are used in business matters as name, as trade name or as special denomination of a business establishment or a company (Art.5 German Trademark Act)

Geographical indications also refer to the origin of a product. They are names of place, regions etc.which are used in commerce to identify the geographical origin (z.B. Dresdner Stollen)

What is a patent ?

A patent protects new inventions, which have an inventive step, and can be applied industrially.

Patent protection can be granted to technical items or processes such as machines, devices and their parts, chemical products, and procedures of production. The commercial usability is always necessary.

Its protection is regulated in the German Patent Act.

What is a utility patent?

The utility patent (often called "little patent") is similar to patents and can be granted for technical inventions, processes however are not included. Compared to the patent the utility patent is cheaper but does not grant the same level of protection.

Its protection is regulated in the German Utility Patent Act.

What is a design?

The design provides protection for the creative work that concentrates on the outer appearance.
Therefore this right is especially interesting for products where the purchase decision is nurtured by a good outer arrangement.

Its protection results from the Design Act.

What is a copyright?

The Copyright grants protection to the personal intellectual creation which manifests itself outwards. It extends to all kinds of fields such as literature, science and arts.

Its protection is regulated in the Copyright Act.

What is a topography?

A topography is the outer design of semiconductor products or chips.

Its protection is regulated in the Semiconductors Act.

What is product- and trademark-piracy?

Product- and trademark piracy can be defined as infringement of intellectual property, i.e. of an intellectual property right (trademark or trade name, industrial design or model, patent, utility model and geographical indication), of a copyright or a neighbouring right (the rights of performing artists, the rights of producers of sound recordings, the rights of the producers of the first fixation of films, the rights of broadcasting organizations), or of the "sui generis" right of the maker of a database (European Commission Green Paper COM (98)569)

What are the legal consequences of product- and trademark piracy?

The law provides several civil claims for the right holder against the infringer:

  • Cease and desist
  • Damages
  • Destruction
  • Recall
  • Information
  • Communication of documents / Inspection
  • Publication of judicial decisions

The violation of Intellectual Property rights can be a criminal act. The relevant laws provide imprisonment up to 3 years or fines. If carried out on a professional scale the term of imprisonment can be up to 5 years. Usually pirated goods are seized and destroyed in the course of a criminal procedure. Finally a seizure of the pirated goods through the customs authorities is possible.

The consumer is also entitled to certain rights when buying counterfeit goods because such goods are faulty in the sense of the German Civil Code. As a consequence the consumer is granted with different warranty rights.

Just this fact alone makes clear that product- and trademark piracy also affects consumer interests.

Cornelia Rudloff-Schäffer

President of the German Patent and Trade Mark Office

"The German Patent and Trade Mark Office manages numerous cooperation projects at an international level to advocate the importance of intellectual property and the effective protection of innovation in the interest of its clients.
The attractive and illustrative activities run by APM to pursue these goals are successfully complementing our efforts."