Exclusive right

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Exclusive right is a term used in commercial legal protection for a monopoly-like subjective right that includes a (positive) right of use and a (negative) right to prohibit.

Patent and utility model law

In patent law, § 9 sentence 1 PatG and in utility model law § 11 paragraph 1 sentence 1 GebrMG is relevant. The mentioned standards state that only the patent or utility model holder is authorized to use the patented invention . Without the consent of the patent or utility model holder, it is every third party according to § 9 sentence 2 PatG or § 11Para. 1 sentence 2 GebrMG is prohibited from manufacturing, offering, placing on the market or using a product that is the subject of the patent or utility model or either importing or possessing it for the purposes mentioned. If the patented invention is a process, No. 2 of the aforementioned provision of the Patent Act prohibits using the process or offering it for use under certain conditions. No. 3 of the standard in question prohibits, under certain conditions, direct products of the patented process from being offered, placed on the market or used or either imported or owned for the purposes mentioned.

Patents and utility models also have the effect that third parties are prohibited from acting indirectly, Section 10 PatG and Section 11 (2) GebrMG.

As can be seen from the above statements and standards, patents and utility models primarily act in a negative sense as prohibitive rights; hence the term "exclusive right".

Exceptions to the negative effects are contained in § 11 PatG and § 12 GebrMG. These restrictions essentially extend to acts in the private sphere and for experimental purposes as well as to vehicles in temporary cross-border traffic. Another exception is the direct individual preparation of drugs in pharmacies on the basis of a doctor's prescription, as well as actions that affect the drugs prepared in this way, Section 11 No. 3 PatG.

Trademark law

In contrast to the Patent and Utility Model Act, the “exclusivity” of the right granted to the trademark owner is explicitly mentioned in the Trademark Act: According to Section 14 (1) of the Trademark Act, the acquisition of trademark protection under Section 4 of the Trademark Act grants the trademark owner an “exclusive” right. The acquisition of the trademark protection can take place: by the entry of a sign as a trademark in the trademark register (No. 1 of the gen. Norm), by the use of a sign with the acquisition of traffic validity as a trademark (No. 2 of the gen. Norm) or by the Notorious awareness of a brand (No. 3 of the general norm).

In addition to trademarks, the Trademark Act protects commercial designations ( company identification and work title ) and - in accordance with No. 3 of the aforementioned standard - also geographical indications of origin in accordance with Section 1 No. 2 MarkenG .

The prohibitive effect of trademark protection is the subject of Section 14 Paragraph 2 No. 1 to 3, Paragraph 3 No. 1 to 5 and Paragraph 4 No. 1 to 3 MarkenG. According to this, third parties are prohibited from using symbols in commercial transactions that meet the requirements detailed in the above standard without the consent of the trademark owner. Here, the prohibition effect extends primarily on the registered trademark identical or similar signs, provided that the goods or detected by the mark and the enemy characters services are identical or similar and thereby the likelihood of confusion or association of the two opposing mark is .

Design law

Also, the design law specifically refers to an "exclusive" rights: According to § 38 para 1 DesignG grants the registered design his. Holder the exclusive right to use it and to prevent third parties from using it without his consent. The right of use reserved for the right holder and the prohibition provisions correspond to the relevant provisions of patent and utility model law (see above). This also essentially applies to the exceptions to the prohibition regulations; see. § 14 DesignG.

(Further) similarities with patent and utility model law

While trademark law only grants an exclusive right to the labeling of products (or services), but not to the products (or services) labeled as such, designs, like patents and utility models, are industrial property rights. This means that products (in the case of patents also processes and products manufactured using the protected processes) are protected from imitation.

Patent and utility model law only protect technical features (if new, inventive and commercially applicable, Section 1 (1) PatG) of the subject (or process) in question, while design law only protects its aesthetic effect, i.e. aesthetically perceptible color and / or Design, protects if the "pattern" in question is new and has individual character , Section 2 (1) DesignG.

As a result, the imitation of an object (for commercial purposes) for which a patent has been granted (or utility model registered) and a design applied for, not only through the technical and design property rights together, but also through each of the two property rights are prohibited on their own.

Differentiation: exclusive rights - monopoly

At first sight, one could equate the terms exclusive right and monopoly - because of the right of prohibition inherent in the exclusive right. More recently, the neoliberal so-called Freiburg School has taken a view in this regard, the radical representative of which is G. Gather, who says: “It is sufficient to assume that the disruptive, inhibiting or corrosive effects of patent legislation are factual.” Walter Eucken also sees - where he refers to patent protection - strong monopoly traits in exclusive rights, although he does not want to completely abolish patent law, but only "loosens it substantially", for example in the form of a kind of unrestricted compulsory license .

A “relaxation” of the exclusive right in relation to the (“pure”) monopoly already consists of the time limitation of the exclusive rights conferred by patents, utility models and design protection. (For trademarks, however, there is no time limit. These can be extended again and again for another 10 years after a 10-year term, Section 47 (1) MarkenG, Section 47 (2) MarkenG).

In order to clarify the difference between an exclusive right acquired through a patent, utility model or design protection and a monopoly, the concept of monopoly must first be examined more closely. Realistically, a monopoly should be understood in an economic sense. This is the case if it allows its holder to monopoly profits to achieve. In the case of patents and utility models, however, such opportunities for profit, which characterize a monopoly, can only be affirmed with great restrictions. These are the cases (which have become very rare today) in which patents (or utility models) cover such a large range of product variants that the patent proprietor's competitors are unable to circumvent such a patent with substitute products. In most cases, however, patents (or utility models) virtually initiate the creation of substitute products, so that customers can switch to these, which naturally significantly reduces the profit expectations and opportunities for the patent or utility model owner.

From a formal legal point of view, an exclusive right may be a monopoly, but not or at most very rarely in the (decisive) economic sense. This applies all the more to the exclusive rights embodied in the design or brand: Here, market participants are always able to switch to products with unprotected designs or labeling.

See also

literature

  • Dietrich Scheffler: Monopoly Effect and Information Function of Patents from Today's Perspective , in: Journal of Commercial Legal Protection and Copyright (GRUR) 1989, p. 798 ff.
  • Udo Kornblum , Dietrich Scheffler: Do current German patent law and its handling in practice meet the needs of medium-sized industry? , in: GRUR 1988, p. 360 ff.
  • Georg Benkard (term): Patent Law, Utility Model Law, 10th edition, Munich 2006 (quoted: Benkard editor).
  • Karl-Heinz Fezer : Trademark Law , 4th edition, Munich 2009.

Individual evidence

  1. ↑ Gerstenberg, E .., Buddeberg, M., Design Law, 3rd edition, Heidelberg 1996, p. 31
  2. ^ Gather, G., Reform of the patent legislation, in: Yearbook for the order of the economy and society (ORDO II) 1949, p. 271
  3. ↑ Eucken, W., Principles of Economic Policy, 5th edition, Tübingen 1975, p. 269
  4. ↑ Jabbusch, W., Limitation of the concentration-promoting effect of patent protection by expanding the Institute of Compulsory License, Cologne, Berlin, Bonn, Munich 1977, p. 8 ff
  5. ↑ Dietrich Scheffler, Monopoly Effect and Information Function of Patents from Today's Perspective, in: GRUR 1989, p. 799
  6. ↑ Udo Kornblum / Dietrich Scheffler, Do current patent law and its handling in practice meet the needs of medium-sized industry? in: GRUR 1988, p. 360