Fame of property rights

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The Nuremberg City Archive claims a non-existent “copyright”.

A property right from the field of intellectual property rights is claimed with the notion of property rights.

With the property right warning , which can take the form of a warning , a competitor is expressly informed that he is violating another property right.

With the property right action, a court clarification about the existence of the property right is sought.

Legal situation in Germany

If an industrial property right is claimed wrongly ( copy fraud ), the person who claims the existence of the property right can be held liable for damage suffered by the warned or defendant or their customers as a result.

Tort law

There is no claim for damages if the potential proprietor of property rights only turns to the potential infringer with a so-called authorization request. With the phrase that is typical for questions of authorization, that the potential infringer should state the reasons for which he considers himself to be justified not to have to observe the property right, no injunction is asserted after a decision by the Mannheim Regional Court .

On July 15, 2005, the Grand Senate of the Federal Court of Justice for Civil Matters ruled :

"The unfounded warning from a trademark law, like any other unjustified warning of property rights, can oblige you to pay damages from the point of view of an unlawful and culpable interference with the right to the established and exercised business enterprise ."

For the reasons:

“The exclusive right granted to the owner of the property right excludes every competitor from using the subject matter defined in accordance with the respective statutory provisions. This far-reaching effect of the exclusive right, which limits the freedom of competition, requires a correlate which ensures that competition is not restricted beyond the objective limits by which the law determines the subject matter deemed protectable and its scope of protection. This necessary balance between the constitutionally protected interest of the proprietor of property rights, protected by Article 14 of the Basic Law, to be able to assert his right, and the interest of competition, which is also protected by the Basic Law as an outflow of the general freedom of action, to be outside the scope of existing rights in compliance with the law being able to develop freely would no longer be effectively guaranteed if the owner of the property right were allowed to claim protection from a property right to an extent that he is not entitled to and if he derives the economic benefit from a culpable misjudgment of the scope of the protection due to him without having to be responsible for any damage caused to its competitors (see for the latter BGHZ 38, 200, 204 - child sewing machines; BGHZ 62, 29, 33 - knitted stocking). "

Legal security is served by the provision on design patents in Section 59 of the Design Act :

“Anyone who uses a designation that is suitable to give the impression that a product is protected by a design is obliged to provide information on which design is available to anyone who has a legitimate interest in knowing the legal situation the use of the name is based. "

Comparable provisions are § 146 Patent Act and § 30 Utility Model Act .

Competition law

In commercial traffic, the unjustified assertion of property rights can also be taken from competition law. The basis for the claim is then § 5 of the law against unfair competition , the misleading commercial act.

Dreier / Schulze state for alleged copyright claims:

“Inaccurate information can be misleading and violate §§ 3, 5 UWG. If someone is incorrectly stated as the owner of the rights who has no rights at all to the work or service, this is not only misleading if someone is assigned a product with which he has nothing to do (LG Munich I of February 28th 1992, Az. 21 O 19381/91), but also when someone assumes the rights of others. The misleading can also lie in the fact that copyrights or ancillary copyrights, which do not even exist, are asserted by such information. This would also be a case of inadmissible trademark rights (LG Munich I of September 21, 1995 Az: 7 O 1384/95). "

In the latter case, it was a matter of the fact that the attached copyright notice of the reprint of foreign public domain notes was misleading and violated §§ 1, 3 UWG old version (Dreier / Schulze § 2 No. 248).

In 1995, the Schwäbisch Gmünd district court awarded a company the reimbursement of its legal fees that had been warned for a plush seal that was not protected by copyright in Germany (NJWE-WettbR 1996, p. 136), and emphasized the obligation of the competitor who issued the warning to To examine the property right in question particularly carefully:

"In the case of an unchecked property right such as copyright, a failure of the protection is to be expected far sooner than in the case of a checked one."

In other words, in the case of copyright, where there is no registration and verification of the claim, it makes sense to make unjustified claims.

However, the objection is that the relevance of a misleading for competition could be omitted in individual cases. The fact that the buyer of a book with content that is actually in the public domain can be prevented from looking for another edition by the copyright notice is rather theoretical. It should also be taken into account that "there is only a risk of being misled if the alleged protection is not seriously considered either domestically or abroad" because even if the processing of a public domain text were not protectable under German law, it could meet the requirements of protection abroad, such as the USA. In that case, however, the publisher would have a legitimate interest in a property right notice in order to secure his foreign rights, in particular to avail himself of the facilitation of evidence under US law.

Criminal law

If someone is accused of a copyright infringement against their better judgment, this constitutes a criminal offense. The public accusation can be punishable as false suspicion according to § 164 StGB. The German Copyright Act (UrhG) , on the other hand, does not provide a handle against uncovered claims to property rights.


The US lawyer Jason Mazzone has called the various attempts to issue public domain works as subject to copyright as copyfraud (from English copy , copy; fraud , fraud, forgery, swindle) and called for the imbalance in the prosecution of copyright infringements on the one hand and inadmissible industrial property rights on the other. On the one hand, he defends himself against unjustified claims to intellectual property rights in works that are actually in the public domain or in the US in the public domain . On the other hand, he is concerned with rights holders trying to overturn the barriers of copyright law , especially fair use under US copyright law. (Potential) users should get the impression through contractual constructions or excessive declarations that they are not allowed to use works without the permission of the rights holder, even if the specific use is permitted by restrictions.

Mazzone makes three proposals to defend the legally drawn limits of copyright law also in legal practice: He demands liability rules in which false copyright notices oblige to compensation; a state regulation of the barriers, through which uncertainties are removed; as well as a number of individual suggestions to ensure the reach of the public domain.

As an example of copy Fraud in the area of image rights as the punch can a public domain on a photocopy Archivales be considered that the Copyright (would be correct in the German area: the copyright) the archive awards. The archive obviously has neither an intellectual property right to the document that is no longer protected nor an ancillary copyright according to § 72 UrhG , because photocopying - all legal comments agree on this - does not result in a protected photograph .

The fact that book and film publishers are increasingly only accepting works by filmmakers or authors if they can provide permission for all quotations in the work shows that the barriers have been undermined . In this way, the publishers secure themselves on the one hand against uncertainties and cases of doubt, on the other hand the rights holders of the template get access to completely legal uses according to the quotation law and the citing usually has to pay license fees for the quotation, to which there is no legal claim.

A case of great public interest are the - from a European point of view - property rights claims of Google Books .

Web links

Commons : Fame of intellectual property rights  - collection of images, videos and audio files


  1. ^ LG Mannheim: Distinction between warning and mere authorization request ( Memento from July 27, 2012 in the Internet Archive ) Mannheim Regional Court , February 23, 2007, Az. 7 O 276/06
  2. Federal Court of Justice, decision of July 15, 2005, Az .: GSZ 1/04 ( online , pdf)
  3. Thomas Dreier , Gernot Schulze: Copyright Law. Copyright Administration Act, Art Copyright Act. Comment. 2nd Edition. Beck, Munich 2006, ISBN 3-406-54195-X , § 13 No. 37.
  4. District Court Schwäbisch Gmünd , judgment of November 22, 1995, Az .: 9 C 1263/95
  5. a b Hefermehl / Köhler / Bornkamm / Bornkamm, UWG, § 5 Rn. 5.123.
  6. Eichmann / v. Falckenstein, Eichmann: Design Law , 3rd edition, Munich 2005, § 59 Rdr. 6th
  7. Jason Mazzone: Copyfraud. In: New York University Law Review. Volume 81, No. 3, 2006, ISSN  0028-7881 , pp. 1026-1100, ( online ).
  8. ^ Jason Mazzone: Copyfraud and Other Abuses of Intellectual Property Law . Stanford Law Books 2011, ISBN 978-0-8047-6006-5
  9. Mazzone 2011, Chapter 8
  10. Mazzone 2011, Chapter 9
  11. Mazzone 2011, Chapter 10