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Tuesday, 24 February 2009

How the 'Second German Reform Act on Victims’ Rights' may affect intellectual property rights


The German cabinet has on 18 February 2009 decided to modernise the German Code of Criminal Procedure (Strafprozessordnung, StPO) by further strengthening the rights of crime victims and crime witnesses. The so-called Second German Reform Act on Victims’ Rights (2. Opferrechtsreformgesetz) is based on a draft by the German Ministry of Justice. While strengthening victims' rights sounds like a worthwhile exercise, there are certain planned changes to the Code of Criminal Procedure that appear to have alarmed some intellectual property right owners in Germany.

The IPKat initially failed to see how strengthening the rights of crime victims could adversely affect intellectual property rights and decided to read the information provided on the German Ministry of Justice's website. Indeed, on page 50 of the draft law it states that Section 395 (2) No. 2 StPO, which allows for accessory prosecution in cases of intellectual property rights (i.e. trade mark, patents, copyright) infringements, will be abandoned. The Ministry of Justice's draft further explains that section 395 (2) No. 2 StPO had been criticised by scholars for some time because it 'was based on a dated connection between private prosecution and accessory prosecution'. Furthermore, infringements of intellectual property rights were no severe crimes of aggression and the victims of intellectual property right infringements were not violated in the 'strictly personal rights' (höchstpersönliche Rechtsgüter).

By way of background information: Section 395 StPO permits victims to join a public prosecutor in the role of an additional prosecutor (Nebenklaeger). Accessory prosecution (Nebenklage) allows victims to play an active role in criminal court proceedings. In the capacity of a private prosecutor, crime victims' lawyers have access to court files, are entitled to request the taking of evidence and may also appeal a judgment.

German news site Wirtschaftswoche reports on how the planned changes could affect the prosecution of producers of counterfeit products. The report cites brand owners, such a Guido Baumgartner of Coty, who is of the view that German state prosecutors in counterfeit and trade mark infringement cases heavily rely on the knowledge provided by accessory prosecutors, i.e. brand owners. Christoph Kannengießer of the Markenverband (trade mark owners' association) is cited a saying that the changes will mostly affect the music, movie and game industry and that the Markenverband will contact the German Ministry of Finance and other governmental bodies to alert them regarding the possible consequences of the new law. Matthias Leonardy of the GVU (society for the prosecution of copyright infringements) stresses the state prosecutors require the assistance of accessory prosecutors to gather the necessary evidence required in criminal proceedings.

The Second German Reform Act on Victims’ Rights has to be approved by the German Parliament, the Bundestag, but does not require approval from the second chamber, the Bundesrat. It is planned that the law will be passed before the Bundestag's summer holiday.

The IPKat will report on any further developments but can't help but wondering whether restricting brand owners' criminal enforcement rights sends the right signal to the producers of counterfeit goods?

The German Ministry of Justice press release can be retrieved here (in German).

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