Trademark infringement occurs when a sign identical or similar to a registered trademark is used in commerce for identical or similar goods or services, creating a likelihood of confusion among consumers. Enforcement options include: a cease-and-desist letter demanding the infringer cease the infringing use, an injunction application before the civil courts (often by way of urgency proceedings), a claim for damages, and a claim for information about the extent of the infringing use. Early, decisive action is important — delay can prejudice the prospects of urgency proceedings.
Copyright infringement is one of the most common forms of IP violation in the digital age. Unauthorized reproduction of images, texts, music, videos, or software on websites and social media platforms constitutes copyright infringement and gives rise to claims for injunction, removal, information, and damages. In Germany, the Copyright Act (UrhG) provides for both damages based on actual loss and a license analogy (Lizenzanalogie) — the right to demand the fee that would have been payable under a proper license. Copyright infringement claims can arise from seemingly minor acts such as embedding images from third-party websites.
Design rights protect the visual appearance of a product — its shape, lines, colors, textures, or materials. A registered design is infringed when a third party uses a design that does not produce a different overall impression on the informed user. Design right infringement is particularly relevant in product design, packaging, and graphic design. Both registered Community designs (via the EUIPO) and unregistered Community designs (which arise automatically for three years from first disclosure) can be enforced against infringers.
Responding correctly to a cease-and-desist letter is critical: the wrong response can crystallize liability or result in the signing of an unenforceable modified cease-and-desist declaration. Before responding, the letter must be carefully analyzed: is the claim legally well-founded? Does the sender have standing? Is the claim proportionate? If the claim is well-founded, negotiating a modified cease-and-desist declaration — with carefully limited terms — is usually preferable to rejection. If the claim is not well-founded, a substantive refusal response is appropriate. Never sign a cease-and-desist declaration without legal advice.
If you receive a cease-and-desist letter, the most important first step is not to panic and not to sign anything without legal advice. Check the deadline specified in the letter — it is typically 10 to 14 days. Seek legal advice immediately. The letter must be carefully analyzed: is the claim legally well-founded? Does the sender have standing to make the claim? Is the requested cease-and-desist declaration formulated in a way that you could sign with modifications? Many cease-and-desist letters contain exaggerated claims or unacceptable drafting.
Generally, no. Photographs and other images found on the internet are protected by copyright, and reproducing them without a license constitutes infringement. Exceptions include images expressly released under open licenses (such as Creative Commons), images from licensed stock photo libraries, and images where the copyright has expired. Even images that are freely available on search engines or social media platforms are typically copyright-protected — the accessibility of the image does not create a license to use it.
German IP law provides for three methods of calculating damages for infringement: (1) actual damage suffered, including lost profits; (2) the infringer's profits attributable to the infringement; and (3) the license analogy — the fee that the rights holder would have charged for a proper license. In practice, the license analogy is the most commonly used method, as actual damages and the infringer's profits are often difficult to quantify. In addition to damages, the rights holder can claim the costs of the cease-and-desist letter and any court proceedings.
Depending on the situation, various options may be considered, such as submitting a cease-and-desist declaration subject to penalty, judicial enforcement of claims, a negative declaratory judgment action, or alternative dispute resolution procedures.
