A creator’s exclusive right of distribution encompasses the right to put up the original work and its replicates for sale and advertise these.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, has significantly bolstered copyright law with its ruling from November 5, 2015 (Az.: I ZR 91/11). According to this, unauthorized advertising can in and of itself constitute an infringement of copyright law, as the creator’s exclusive right of distribution encompasses the sale of both the original work and its replicates as well as targeted advertising to promote the sale of these products.
In the present case, the defendant company had promoted certain pieces of designer furniture in Germany on the internet, in magazines and in brochures. Another company that was also marketing this furniture sued for an injunction and damages in response to this. It primarily asserted claims under copyright law, but also in the alternative under competition law, arguing that it held the relevant rights of use under copyright law. The furniture is protected by copyright in Germany as works of applied art.
Like the courts of lower instance before it, the BGH granted the legal action. According to the case law of the Court of Justice of the European Union, the holder of the exclusive right of distribution in a protected work is also able to forbid advertising if it is not proven that the protected works ended up being sold because of the advertising but said advertising nevertheless encouraged people to purchase the products in question. Thus, it is not at all necessary for the promoted products to have actually found a buyer. The Karlsruhe judges therefore concluded that the defendant company had infringed rights under copyright law with its advertising.
One of the purposes of copyright law is to afford both conceptional and material protection to intellectual property. This has been underlined once again by the BGH’s case law. Notwithstanding this, it can prove challenging adducing evidence in relation to intellectual property rights. To prevent copyright infringements from occurring and protect oneself against these, one can consult a lawyer who is versed in the field of copyright law.
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