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Enforcing utility model rights

Please note that the German Patent and Trade Mark Office is not allowed to provide legal advice. Therefore, the information below cannot replace legal advice by a lawyer, but will give you a rough and non-exhaustive overview of the options available to you.

Enforcement

Get active as soon as possible. Watch the market and competitors to detect patent infringements. Make the work as difficult for infringers of your utility model as possible. Professional providers of search services, such as the Patent Information Centres, offer assistance in this field.

The enforcement of industrial property rights requires extensive legal knowledge. Therefore, it is advisable in most cases to seek legal assistance from a lawyer.

  • Lawyers with special knowledge in the field of IP protection (specialist lawyers for IP protection) in your region can be found via the chambers of lawyers.
  • Patent attorneys can be found via a nationwide patent attorney search, a service of the Chamber of Patent Attorneys.

How to enforce your utility model?

To enforce your utility model right, you have the following options, among others: infringement action, injunction and/or application for border seizure. In addition, utility model infringement may be punishable by law under certain circumstances.

  • Infringement action

You can pursue IP infringement primarily under civil law, i.e. you can sue for infringement in the regional courts (Sec. 27(1) Utility Model Act [Gebrauchsmustergesetz]) (in German). Please note that you must appoint a lawyer to represent you before the regional courts. That means that you must have a lawyer to enforce your claims in court.

In infringement proceedings, you can assert the following claims, for example:

  • Injunction

Court proceedings may often be time-consuming. Where there is a need for urgency, an injunction may offer provisional legal protection.

Important: If an injunction proves to be unjustified from the outset, the opponent can claim compensation from the person filing the request for injunction.

  • Application for border seizure

To prevent copied or fake products from entering the European market, you can submit an application for border seizure (Important: If a seizure proves to be unjustified from the outset, you may possibly have to compensate the damage caused by the unjustified seizure.

  • Criminal proceedings

Deliberate IP infringement is in principle punishable by law, but as a rule is only prosecuted upon request (

Examples – what you can do if …

Using three Cases as examples we will show you what you can do if problems arise through third parties:

  • Case 1: You learn that others are copying your utility model
  • Case 2: You want to challenge the utility model of someone else because you believe that your rights are limited by it
  • Case 3: A cancellation request was filed with respect to your registered utility model

Further links

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Picture: iStock.com/nautiluz56

Last updated: 8 May 2020 

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