by Hetti Hilge
The District Court Cologne made some interesting remarks on the requirements of a seizure by the police on a trade show (decision of 6 May 2013, 116 QS 12/13 an, 116 Js 788/12). Under German law, a willful patent infringement constitutes a criminal act so that the public prosecution and the police are generally competent to investigate. On trade shows, seizures of products which are alleged to infringe patents or other IP rights are often based on criminal law, and for some trade shows the police are present during the whole time in order to be able to act promptly. As the police officers regularly have no detailed knowledge of patent law, they usually rely on the partial explanations of the patentee and assess whether these are plausible. Of course this bears a considerable risk of misuse as the right owners who are the competitors of the concerned exhibitors have a certain and potentially abusive own interest that their competitors are precluded from exhibiting their products. This has now also been set out by the District Court Cologne that had to decide on the appeal concerning the illegality of a seizure of children’s play yards and the searching of the booth by the police. The court further made it clear that the police generally cannot act at its own discretion but – except for very exceptional cases of imminent danger – needs to obtain a search order by the investigating judge first.
rospatt osten pross – Intellectual Property Rechtsanwälte