GERMANY Law and Practice Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
10.3 Attorneys’ Fees and Costs The claimant is responsible for paying accrued court fees in order to start the proceedings. During the dis - pute, expenses incurred for procedural actions are borne by the party that requests them. However, ulti - mately the losing party is required to reimburse the prevailing party for all costs of litigation fees inclusive of court fees, expenses and attorney fees of both parties in the statutory amount; this does not include higher costs due to a fee arrangement. The judgment rendered by a court always encom - passes a decision on the reimbursement of costs. In the case of a partial win, the statutory amount of the total cost will be split pro rata. 10.4 Ex Parte Relief Regular legal proceedings always require the notifica - tion of the defendant. The defendant must have the opportunity to participate in the proceedings and be heard before a preliminary injunction is rendered; how - ever, it may suffice if this is made out of court (eg, by responding to a warning letter). 10.5 Customs Seizures of Counterfeits or Parallel Imports In order to obtain border control actions against potential infringements, an application has to be filed with the customs authorities. Once such an applica - tion has been processed and control measures have been granted, the customs authorities will seize goods entering or leaving the territory of Germany or the EU, which are found to be infringing. If the owner of the goods does not oppose the seizure within two weeks, the goods will be confiscated. In the case of an opposition by the owner of the goods, the trade mark owner is requested to obtain a court decision confirming an infringement of its right. If an infringement cannot be established, the owner may be liable for damages. If an infringement is established, a trade mark will either be removed from the goods, if possible, or the goods will be destroyed. An owner of a registered trade mark is also allowed to prohibit the transport of goods that will not be offered in the German market from third countries to Germany (ie, the mere transit), if these goods contain a trade
mark that is identical to or in significant elements not distinguishable from the registered trade mark (Sec - tion 14a TMA).
11. Appeal 11.1 Appellate Procedure
Appeals against first-instance decisions ( Berufung ) – which will usually be admissible in trade mark cases due to the high value of the amount in dispute ( Stre- itwert ) – will be conducted before the higher regional courts for trade mark disputes. The competent courts of appeal in a copyright dispute are either the regional courts or the higher regional courts, depending on the court being competent in the first instance (see 7.5 Lawsuit Procedure ). The second appellate level ( Revision ) before the BGH is subject to explicit permission to appeal being granted. This permission may be granted by the court of second instance or by the BGH after filing a non- admission complaint ( Nichtzulassungsbeschwerde ) against the denial to grant a second appeal. Contrary to that, in copyright procedures, the higher regional courts are competent regarding the second appeal if the district courts ( Amtsgerichte ) are competent in the first instance. 11.2 Timeframes for Appealing Trial Court Decisions Within one month of service of the full version of the judgment, the appellant must submit a statement of appeal. Within one more month, the appellant must submit a statement on the grounds of appeal describ - ing the reasons why they consider the judgment to be erroneous and the significance of these errors for the judgment. At the first appellate level, the duration of the proceed - ings will usually take at least six to 12 months. The second-level appeal very often lasts for a further 18 to 24 months, until a decision is rendered.
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