By Maurice Nussenbaum. Lecture delivered as part of the symposium “Counterfeiting, Intellectual and Industrial Property: the Role of the Expert”, organised by the CEACC on 16 December 2016.
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We shall address two topics, both of which relate to counterfeiting. Firstly, the assessment of damages arising from counterfeiting (A) and, secondly, FRAND licence rates in the case of essential patents (B).
TOPIC A: Assessing the damage caused by counterfeiting
The prosecution and redress for infringement are governed by two pieces of legislation:
– the 2007 Act on Combating Counterfeiting
– the 2014 Act strengthening the fight against counterfeiting
The damages provided for under the Act of 29 October 2007 take into account, for each area of infringement, the negative economic consequences—including loss of profit—suffered by the injured party, as well as the profits made by the infringer, and the non-pecuniary damage caused to the right holder as a result of the infringement.
However, the court may, as an alternative and at the request of the injured party, award a lump-sum amount as damages, which may not be less than the amount of the royalties or fees that would have been due had the infringer sought authorisation to use the right that has been infringed (Lizenzanalogie in Germany). This is a straightforward transposition of Article 13 of Directive 2004/48.
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