(FEDERAL REPUBLIC OF GERMANY)

(WIPO code: DE) (latest review August 2019)

by LIPPERT, STACHOW & PARTNER German Patent Attorneys, Attorneys-at-Law, European Patent & Trademark Attorneys Bergisch Gladbach, Dresden, Solingen, Alicante – Mr. Jérôme Peeters

General Information

Area

357,000 sq. km.

Population

80,457,737 (estimated July 2018).

Capital

Berlin.

Language

German.

Currency

Euro (EUR).

General Remarks

The Federal Republic of Germany comprises the following territories (capitals are mentioned in brackets): Nordrhein-Westfalen (Düsseldorf), Bayern (München), Baden-Württemberg (Stuttgart), Niedersachsen (Hannover), Hessen (Wiesbaden), Rheinland-Pfalz (Mainz), Schleswig-Holstein (Kiel), Hamburg (Hamburg), Saarland (Saarbrücken), Bremen (Bremen), and since October 3, 1990 also: Mecklenburg-Vorpommern (Schwerin), Brandenburg (Potsdam), Thüringen (Erfurt), Sachsen-Anhalt (Magdeburg), Sachsen (Dresden), and Berlin including former West and East Berlin. Whereas only the Federal Patent Court has jurisdiction concerning validity/nullity of patents, each aforementioned “Bundesland” has one or more civil courts that have exclusive jurisdiction for patent litigation (nullity and infringement proceedings are necessarily separate, see “Nullification action” in Chapter II.6 below).

Since October 3, 1990, when former West and East Germany were unified, any law in the field of Intellectual Property Rights is valid in the entire German territory. The Patent and Trademark Office of the Federal Republic of Germany is the central authority in the field of Intellectual Property Rights (except for plant varieties, which are examined by the Federal Variety Office).

Applications for Intellectual Property Rights (patents, utility models, designs, typographical letters, semiconductor protective rights and trademarks), which were filed at the German Patent and Trademark Office after October 3, 1990 are valid in the entire territory of Germany (see Chapter XI. FORMER RIGHTS OF THE GERMAN DEMOCRATIC REPUBLIC). Applications, which have been filed either at the German Patent and Trademark Office or at the Patent Office of the German Democratic Republic (“DDR”) prior to October 3, 1990, as well as protective rights, granted before that date, are extended to cover the entire territory of Germany by the Act on the Extension of Industrial Property Rights (Extension Act) of April 23, 1992. The same applies to applications filed and protective rights registered or granted under International Conventions and which were effective in the former Federal Republic of Germany and the former German Democratic Republic.

Due to the extension of industrial property rights to the respective other former national territory, a collision of rights, which correlate with respect to their territorial scope, could occur. In this context, the so-called “coexistence principle” applies to the technical protective rights, such as patents and utility models. This means, for example, that two parallel patents remain effective and the protected subject matter can be used in the entire territory of Germany. Moreover, the respective holders or entitled parties cannot raise any claims against one another. However, this applies only insofar as the unrestricted use of the protected subject matter in the extended territory is not inequitable for the other party. The above regulation is also valid for registered designs. (The so-called agreement principle applies to conflicting trademarks. According to this principle, use of the name in question in the respective extended area is generally permitted only with the consent of the other owner of the trademark. Exceptions are again possible if this regulation would lead to inequitable hardships for one of the parties. The agreement principle also applies when trademarks conflict with name rights).

The rights of priority and of continued use remain largely unchanged.

A peculiarity concerning extended economic patents of the former German Democratic Republic must be noted. These economic patents are valid as patents for which a licensing declaration has been submitted to the German Patent and Trademark Office. However, no separate publication is issued by the German Patent and Trademark Office. This licensing declaration can, however, be revoked under certain conditions by an appropriate declaration. This declaration is published in the Patent Office Journal.

A further regulation of the Extension Act is of particular importance for foreign patent holders. According to this regulation, rights extended to the old Federal Republic of Germany for a patent that was not published in the German language cannot be claimed until a German translation has been published upon receipt of an application and payment of a fee.

A Board of Conciliation is established at the German Patent and Trademark Office to bring about an amicable settlement between the parties in case of legal disputes arising from the extension of protective rights. A party can call upon the Board of Conciliation by submitting an application and paying a fee.

 

Statistics (2015) Filed Issued
Patents * 66,889 14,795
Utility models 14,277 12,254
Trade and service marks ** 69,130 46,484
Design patents 55,219 50,748

* includes national applications and PCT applications entering (direct) German national phase
** includes national and international applications