Copyfraud
With the Schutzrechtsberühmung (also copy Fraud ) is a property right in the field of intellectual property rights claimed.
With the right protection warning, which can especially be in the form of a warning, a competitor is strongly advised that if he violates a foreign protection law.
With the Intellectual Property Case clarification on the existence of the patent is sought in court.
Legal situation in Germany
If a Schutzrechtsberühmung wrongly, can the one who takes care of the existence of the patent claim, be held liable in certain circumstances for damages suffered by the defendant or its customers or admonished thereby.
No claim for damages is when the potential holder of property rights only apply a so-called authorization request to the potential infringer. With the typical entitlement issues phrase that the potential infringer should communicate the reasons for which he considered himself entitled not to have to observe the intellectual property rights, according to a decision of the District Court of Mannheim no injunctive relief is sought.
On 15 July 2005, the Grand Chamber of the Bundesgerichtshof decided to civil matters:
" The unfounded warning of a trademark right may just as any other unauthorized property rights warning commit from the viewpoint of an unlawful and culpable interference with the right to an established and functioning business to pay damages. "
The core sets of reasons are:
"That the holder of property rights conferred exclusive right includes any competitors out of the use of the defined in accordance with the relevant legislation protected subject matter. This incisive, the freedom of competition limiting effect of the exclusive right requires a correlative, which ensures that competition is not restricted by the objective limits, by which the law determines the deemed patentable subject matter and its scope of protection. This necessary balance between the constitutionally protected by Article 14 of the Basic Law the interests of the rights holder to be able to exercise his right asserted, and also in any case as a manifestation of the general freedom of action protected by the Basic Law the interests of competition, outside the scope of existing rights within the law, to develop freely, would not be more effective ensured if it would be the right holder allows protection to claim a property right in a manner which is not due to him, and when he pull the economic benefit of a culpable failure to recognize the scope of the claim the protection likely without having to take responsibility for a damage incurred as a result of its competitors (see for the latter BGHZ 38, 200, 204 - Kids sewing machines; BGHZ 62, 29, 33 - mesh resistant sock ). "
The juridical security, the provision on Geschmacksmusterberühmung in § 59 of Design Act:
" Anyone who uses a name that is likely to give the impression that a product is protected by a design patent, is bound to give anyone who has a legitimate interest in knowing the law at the request information as to which design the use of the name is based. "
Similar provisions are § 146 Patent Act and § 30 utility model law.
Copyright
For copyright questions Dreier / Schulze firmly:
" Incorrect information can be misleading and against § § 3, 5 UWG violated. If someone is incorrectly specified as right holder, who has absolutely no right to the factory or to the performance, this is not only misleading if someone is assigned to a product with which it has nothing to do (LG München I on 28 February 1992, reference 21 O 19381/91 ), but also when someone usurps party rights. The deception may also be that copyright or performance rights that do not exist, are claimed by such information. This would also be a case inadmissible Schutzrechtsberühmung (LG München I of 21 September 1995 Az: 7 O 1384/95 ). "
In the latter case, it was a matter that the attached copyright notice of Nachdruckers foreign public domain scores was misleading and against the § § 1 and 3 UWG old version violated ( Dreier / Schulze § 2 para. 248). In contrast, the Eichmann said in Eichmann / v. Falckenstein, Design Law, 3rd edition, Munich 2005, § 59 Rdr. 6 (p. 538 ) that there are "misleading hazard only when these protective neither domestically nor abroad seriously considering coming".
The district court Schwäbisch Gmünd spoke in 1995 of a company to be reimbursed for their attorney's fees, which was cited for a copyright- protected in Germany plush harbor seal ( NJWE - WettbR 1996, p 136), and lifted it the obligation of the abmahnenden competitors out that for particularly carefully examine speech standing protection law:
" In an unchecked property rights such as copyright, rather than to expect a non- existence of protection far from a certified. "
In other words, in copyright law, where there is no registration and verification of the claim, it is natural to impose unjustified claims.
The U.S. lawyer Jason Mazzone has the diverse attempts public domain works as a copyright issue with lying, as the copy Fraud (of English copy, copy. '; Fraud, fraud, forgery, swindle ') called and called, the imbalance in the prosecution of copyright infringement to eliminate the one hand, and impermissible Schutzrechtsberühmung other.
As an example of copy Fraud in the field of image rights about the stamp can be viewed on a photocopy of a public domain Archivales, of the copyright ( would be correct in the German-speaking area: copyright ) ascribes the archive. The archive has obviously neither an intellectual property right on the no longer protected document nor an intellectual property right in accordance with § 72 of the Copyright Act, because of photocopying - it is all legal comments agree - no protected photograph.
If someone accused of copyright infringement against their better judgment, so lies in the accusation of a crime. The public accusation may be 164 of the Penal Code punishable as a false accusation according to §.