GERMANY Trends and Developments Contributed by: Bernhard Thum, Andreas Mötsch, Jonas Weickert and Frank Eichelhardt, Thum & Partner | Thum, Mötsch, Weickert Patentanw
Unfair Competition Law Product imitation, marketing conduct and sustainability messaging Unfair competition law remains relevant as an enforce- ment layer where registered rights do not fully cap- ture market behaviour. It is often used alongside trade marks and designs in imitation disputes and in cases involving misleading marketing claims. A current theme is sustainability messaging. Increased scrutiny in this area elevates the need for substantia- tion and transparent communication. For many busi- nesses, this is not only a compliance issue but also a litigation risk issue, because competitors can chal- lenge claims that create an unfair competitive advan- tage. Practical takeaways • Combine unfair competition claims with IP rights where product presentation or marketing conduct is central. • Build substantiation files for sustainability messag- ing, and ensure legal review is part of campaign planning. Contracts and Cross-Border Dispute Management Contracts as the backbone of IP value creation and control Contractual frameworks continue to drive IP value and disputes. Licences, R&D collaborations and supply agreements determine who controls rights, who can enforce them, and how risks and costs are allocated. In the UPC era, entitlement and control can influ- ence forum strategy, opt-out governance and settle- ment authority. Contracts should therefore be tested against dispute scenarios, and should include clear documentation duties – for example, obligations to provide technical information, to preserve evidence, or to support enforcement can be decisive in fast pro- ceedings. Cross-border co-ordination Cross-border disputes are increasingly common, and the UPC accelerates that trend. Effective management requires central co-ordination, rapid technical mobi- lisation and consistent messaging. It also requires early decisions on settlement posture and on escala-
marketing and packaging. Businesses should ensure that licences, scope of use, and records of exploita- tion are organised. German courts have also begun to address text and data mining in the context of AI training datasets. A key practical point is that, for online works, a reserva- tion of use may need to be made in machine-readable form in order to be effective. For AI users, reliance on exceptions requires careful assessment of purpose, commercial context and opt-out signals. Practical takeaways • Do not assume product shapes qualify as copy- righted applied art; consider designs and trade marks as more predictable tools. • Establish an AI and copyright compliance approach that includes dataset governance and, for rights holders, machine-readable reservations where appropriate. Trade Secrets Trade secrets as a strategic complement to registered rights Trade secrets remain critical where innovations are not patented, where patenting would disclose sensitive know-how, or where speed and secrecy are commer- cially preferable. A key practical requirement is that information typi- cally only qualifies as a protected trade secret if rea- sonable secrecy measures are in place. This pushes businesses towards active compliance: mapping trade secrets, controlling access, implementing con- tractual protections and documenting measures. Trade secret disputes often arise in employment transitions, supplier relationships and joint develop- ment settings. Litigation readiness therefore includes onboarding and exit protocols, device and access management, and clear contractual clauses. Practical takeaways • Conduct a trade secret mapping exercise and implement proportionate, documentable secrecy measures. • Align trade secret protection with HR and procure- ment processes, which are frequent risk points.
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