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R+T to offer advice by lawyers for the first time

It is estimated that forgeries and counterfeits account for ten per cent of world trade while the resulting annual losses amount to between €200 billion and €300 billion.

Around 200,000 jobs are also lost every year as a result of these illegal activities. Trade fairs and exhibitions have become a hotbed for product pirates in the last few years. Leading international trade fairs such as R+T, which features a large number of innovations from the areas of roller shutters, doors/gates and sun protection systems, are especially attractive in the eyes of product pirates. Messe Stuttgart are set to tackle the subject at R+T 2009 and offer a separate advice stand for the first time. Two lawyers will be on hand at the start of the trade fair to offer assistance regarding cases of counterfeit infringements. The subsequent presence of the lawyers will depend on the current needs of exhibitors. Michael Schneider, a lawyer specialising in commercial and company law at the Stuttgart law firm Raupach & Wollert-Elmendorff, explains what will happen during R+T.

Q: Mr. Schneider, what is the purpose of the industrial property right protection stand at R+T 2009?
Michael Schneider: We want to give exhibitors at R+T the opportunity to take immediate action, i.e. during the trade fair, regarding patent infringements and infringements of other industrial property rights.
Q: How can this action be defined in precise terms, i.e. what will actually happen if an exhibitor finds his product on another stand?
Michael Schneider: The exhibitor must firstly prove that he possesses a patent or another industrial property right, for example a trademark, a utility model or a registered design, for this product. In this case it is absolutely essential that the affected exhibitor has with him documents relating to his industrial property right. Articles on the product in trade journals or other publications may also be useful. Generally speaking, the more documents an exhibitor can produce, the better it is.The infringement of industrial property rights should also be proved conclusively as this may also be the only way for an exhibitor to legally enforce his rights. It is therefore recommended that photographs be taken of the counterfeit products and that brochures be taken away. If this is not possible, the presence of a witness can be advantageous as he/she can give evidence during a subsequent trial. On request, a lawyer may also go on the witness stand and examine the product forming the subject of complaint.
Q: And then?
Michael Schneider: The most worthwhile action to be taken in the event of infringement of industrial property rights depends on the individual case. In many cases the first step to be taken against a counterfeiter is to send a warning letter. This means that an exhibitor of a counterfeit product should be requested – preferably in writing so that proof is available at a later date – to remove the illegally identified or copied product from the stand as quickly as possible and stop offering it for sale.
Q: Is that then the end of the matter?
Michael Schneider: Yes, in the best possible scenario. However, even a successful warning is no guarantee of protection against the counterfeit product being exhibited again at another trade fair. If you are unlucky, the product pirate will act obstinately during the current trade fair. We therefore recommend that a warning letter be sent with a cease and desist declaration under threat of prosecution. This cease and desist declaration must be signed by the counterfeiter. By signing this document, he gives an undertaking to pay a certain amount as a contractual penalty for every repeated case of infringement of industrial property rights. However, the cease and desist declaration should be formulated in watertight language so that the contractual penalty can also be definitely enforced in the event of infringement. A lawyer can help in this respect. We will also have the use of a meeting room at R+T so that tricky matters do not have to be discussed on the stand within earshot of everyone.
Q: What happens if the counterfeiter shows no reaction at all?
Michael Schneider: The only solution then is to take legal action. In this case, an application can be made to the competent regional court to issue a temporary injunction in which the counterfeiter is legally forbidden from carrying out precisely described infringing actions. At this point in time by the latest, you must be able to document your own rights and their infringement by the counterfeiter.
Q: But court proceedings last for ever, don’t they?
Michael Schneider: No, the proceedings in such a case are completed very quickly because the courts also realise that trade fairs only run for a few days. In an emergency, the trade fair company can also make use of its house rules and regulations and exclude the counterfeiter from the current trade fair or, if necessary, even from trade fairs in future. 

Q: When does an industrial property right infringement actually occur – is the visual appearance of a product important or is it more a question of its function? And is mere similarity sufficient?
Michael Schneider: This is rather complicated because there are different industrial property rights in Germany – patents, utility models, registered designs and trademarks. The individual scope of protection depends on the nature of the industrial property rights. Generally speaking, rights are infringed whenever important characteristics of a product are imitated for the same purpose. In the case of patents, for example, the printed patent specification shows what is protected by the particular rights. In the case of a registered design, the design and the general aesthetic impression are the decisive factors. It is therefore always important to have documents available on the affected industrial property right so that the lawyer can definitely estimate whether an illegal imitation in question actually exists.
Q: All in all, there are obviously many ways to combat product pirates during the trade fair. But is it also possible to take action before the start of the trade fair?
Michael Schneider: Of course, if you know, for example, that a ship contains a counterfeit product which will be exhibited at R+T. In this case you can apply to customs to seize temporarily imported goods from a third country if they infringe an existing industrial property right. Incidentally, this border seizure not only functions at the border, but also inside Germany. If necessary, an application for a border seizure may also be submitted during the trade fair.



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