Unjustified Allegations of Infringement of Intellectual Property Rights from a German Perspective

Abstract IP owners should be able to freely assert their IP rights against suspected infringers, even in cases where the question of infringement or validity has not been answered with full clarity prior to the assertion. On the other hand, the mere threat of exercising IP rights may effectively deter competitors even from lawful and legitimate conduct. Based on the answers provided by the German National Group of the International Association for the Protection of Intellectual Property (AIPPI) to AIPPI’s 'Study Question 292', this report discusses six common types of allegations of infringement of IP rights, and the consequences for the IP owner if the allegation turns out to be incorrect: warning letters, authorisation inquiries, court proceedings, border seizures, take-down notices and press releases and other public allegations. The German approach essentially finds an IP allegation unjustified if in hindsight the IP right in question proves to be invalid or not infringed. Although it substantially deviates from the more subjective approach advocated by the Resolution adopted by the AIPPI on this issue in 2024, the authors of this article are of the opinion that the German approach works well in practice, not least thanks to relatively clear rules.