GERMANY Law and Practice Contributed by: Clemens Tobias Steins, Michael Pfeifer, Daniel Grohs and Bianca-Lucia Vos, HOFFMANN EITLE
5.6 Relevance of Claimant/Plaintiff Conduct to Relief German courts have no discretion to reduce or with ‑ hold relief because of a plaintiff’s conduct unless the plaintiff holds a dominant position and if the conduct constitutes an abuse of that dominant position under competition law (Article 102 TFEU).
The plaintiff has discretion regarding the calculation method applied and can even use different methods for different periods. It very rarely leads to a follow-on action on the amount of damages, because the parties generally reach an out-of-court settlement once infringement has been established in a final decision or earlier due to threat ‑ ened or enforced injunctive relief. As such, the case law on the amount of damages is limited, and there ‑ fore, no industry-specific conclusions can be drawn. 5.5 Legal Costs The court’s decision includes a determination of: • which party bears the legal costs; or • where costs are shared, the allocation of those costs between the parties. The legal costs include, in particular: • the court fees (advanced by the plaintiff); and • the adversary’s attorney fees. Both depend on the value of the dispute, which the court also determines based on the parties’ submis ‑ sions or the court’s own findings of fact, usually during the main hearing. In principle, the losing party pays the legal costs. How ‑ ever, a plaintiff must bear the legal costs of litigation if: • the defendant’s conduct did not give justified cause to resort to litigation; and • the defendant immediately acknowledges the claim. The plaintiff can avoid this risk by sending a warning letter, but this decision must be made on a case-by- case basis, as outlined below. • How likely is an immediate acknowledgement? • Is such a quick win potentially worth bearing the legal costs? • What risks does sending a warning letter bring in a specific situation?
6. Other IP Rights 6.1 Trade Marks
There are no special rules for trademarks in the phar ‑ maceutical or life sciences sectors, so any trademark must not be misleading or cause confusion with a pre- existing trademark. In the life sciences field, trademark disputes are most common in repackaged pharmaceuticals for parallel import. 6.2 Copyright It is currently unknown if there are any copyright dis ‑ putes in the life sciences and pharma sector in Ger ‑ many. 6.3 Trade Secrets Trade secret disputes are, so far, not very common in Germany’s pharma and life sciences sector. Main infringement judgments and judgments in provi ‑ sional injunction proceedings can be appealed at the higher regional courts. A further appeal at the Federal Court of Justice (FCJ) on a point of law is possible only in main infringement proceedings. In nullity proceedings, the FCJ is the appellate instance, so that the bifurcated tracks of the German system converge there. 7.2 Appeal Court(s) Arbiter The higher regional courts and the FCJ also have spe ‑ cialised patent panels. 7. Appeal 7.1 Timeframe to Appeal Decision
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