Copyright and trademark rights of WT-Direct GmbH

Copyright - Trademark infringements for EUROPA

Copyright and trademark rights for our products under the brand names WTD, WTP and WT-Direct

German copyright law provides civil, criminal, and competition law instruments to penalize the unauthorized use of protected works. An infringement of copyright occurs when the third party's execution falls within the scope of protection and violates it. Two different scenarios are conceivable: First, the third party's work could be identical to the author's work, in which case the scope of protection would be clearly infringed. Second, the third party's execution might merely be similar to the copyrighted work. Only in the latter case is a precise delimitation of the scope of protection absolutely necessary and must be determined individually, depending on the specific circumstances.

Protection area

It is determined by the characteristics that establish the level of originality. The greater the inherent distinctiveness of the work, the broader the scope of protection can be. The very limited scope of protection for so-called "minor" works is therefore difficult to infringe, whereas it is easy to infringe upon the scope of protection of works with a considerable level of creative merit (for example, complex and striking paintings or sculptures). However, only those characteristics that are actually used to define the work are taken into account (such as the particularly imaginative content of a novel or similar work).

Civil law claims

The author or exclusive licensee has the following claims available: a claim for removal pursuant to Section 97 Paragraph 1 Sentence 1 Alternative 1 of the German Copyright Act (UrhG) to eliminate a disturbance; a claim for injunctive relief pursuant to Section 97 Paragraph 1 Sentence 1 Alternative 2 of the German Copyright Act (UrhG) to prevent further infringements of the scope of protection; a claim for damages pursuant to Section 97 Paragraph 1 Sentence 1 Alternative 3 of the German Copyright Act (UrhG) to pecuniarily compensate for the damages incurred (the rights holder can choose the most attractive method of calculating damages from among various options against the infringer; the method of so-called license analogy is generally used); a claim for compensation for non-material damages pursuant to Section 97 Paragraph 2 of the German Copyright Act (UrhG); and a claim for destruction of the unlawfully produced copies pursuant to Section 98 Paragraph 1 of the German Copyright Act (UrhG) or Section 69f Paragraph 1 of the German Civil Code (BGB). Copyright Act (UrhG), a claim for surrender of the infringing object pursuant to Section 98 Paragraph 2 UrhG, a claim for destruction/surrender of the reproduction devices pursuant to Section 99 UrhG, a claim for information pursuant to Section 101a Paragraph 1 UrhG, a claim for publication of the judgment pursuant to Section 103 Paragraph 1 Sentence 1 UrhG in order to potentially have a deterrent effect, a claim for production pursuant to Section 809 BGB in order to obtain a remedy in case of any uncertainty regarding the infringement of the scope of protection, a claim for unjust enrichment pursuant to Section 812 BGB to claim the benefits unlawfully obtained by the infringer, and a claim for accounting, insofar as this is necessary for calculating the damages.

Criminal consequences

The following conduct is punishable under criminal law: the unauthorized exploitation of copyrighted works pursuant to Section 106 of the German Copyright Act (UrhG) (fine – three years' imprisonment), the unauthorized affixing of a copyright notice pursuant to Section 107 of the German Copyright Act (UrhG) (fine – three years' imprisonment), and, pursuant to Section 108b of the German Copyright Act (UrhG), unauthorized interference with technological protection measures and information necessary for the exercise of rights (fine – one year's imprisonment), such as the removal of copy protection. The penalty can be increased to three years (for unauthorized interference with technological protection measures) or five years (for commercial unauthorized exploitation) in cases of commercial ("professional" commission). In such cases, a (otherwise very rare) mistake of law exempting the offender from culpability may be assumed, as a potential offender operating in a legal gray area may not be aware of violating the law. However, he must not have the slightest doubt that what he is doing is entirely in accordance with the law. With the exception of offenses committed on a commercial scale (§ 108a), these crimes are prosecuted only upon application, unless the prosecuting authority deems intervention necessary due to a special public interest (§ 109).

The deadline for the application is three months from the date the person entitled to the application becomes aware of the act and the perpetrator (§ 77b) StGB.

In 2009, 229 people were convicted nationwide for copyright infringements, of whom a good dozen received a prison sentence.

Competition law consequences

The appropriation of a product based on another's work can also violate Section 3 of the German Act Against Unfair Competition (UWG). According to this section, unfair competitive practices that are likely to impair competition to the detriment of competitors, consumers, or other market participants to a more than negligible extent are prohibited. The appropriation of another's work that is not protected by copyright is generally not prohibited under Section 3 UWG. However, circumstances beyond the mere appropriation of the work can lead to the applicability of Section 3 UWG. This means that Section 8 UWG grants the injured party a right to an injunction, and Section 9 UWG grants a right to damages.

Compulsory exploitation of copyrights

Enforcement of copyright infringement claims is governed by the general rules of the German Code of Civil Procedure (ZPO). Section 113 of the German Copyright Act (UrhG) allows for enforcement against copyright holders for monetary claims, provided the copyright holder consents.

International copyright law

International copyright law is a subfield of private international law. As a conflict of laws, it determines which law applies in which situation. Alongside this, there is national immigration law, which establishes whether a foreigner can even invoke the protection of the respective copyright. This is primarily regulated by international treaties.

Since copyright/trademark rights are not explicitly defined anywhere (like property rights), they are difficult to assign to a specific legal system. Two theories are proposed to address this problem: the territoriality principle and the universality principle. The territoriality principle is based on the idea that copyright arises only through state privilege and is therefore only valid within the respective territory. Accordingly, one can speak less of copyright as a single entity and more of a bundle of claims under national law. The universality principle stems from the natural law concept that copyright arises automatically upon creation, requiring only further development through individual national laws.

Copyright conflict of laws is not codified in Germany. The prevailing opinion (following Eugen Ulmer) subjects the claim to the law of the state for whose territory protection is sought. The opposing view (Schack) considers this outdated, based on the natural law foundation of copyright, and advocates subjecting copyright to a uniform statute. This stems from the private international law principle of the protection of vested rights.

Closing remarks on copyright/trademark information:

All articles and images published on this website are protected by copyright and trademark law. Any use not permitted by copyright and trademark law requires the prior written (but not oral) consent of WT-DIRECT GmbH. It is expressly forbidden to use or distribute to third parties the images, text, brand names WTD, WTP, WT-Direct, and videos or parts thereof published here. We would like to point out that in cases of misuse, criminal charges will be filed without exception. A lawsuit for damages will also be filed; the amount in dispute is €25,000.

For questions regarding copyright/trademark law, please contact us!