With regard to all forms of criminal infringement of intellectual property, criminal charges can be brought against the infringer, but only in cases of intentional infringement. The owner or manager of a business can likewise be held criminally liable if they fail to hinder an employee’s or contractor’s infringement.
In case of criminal infringement of industrial property, employees and contractors cannot be held criminally liable if they have committed the infringement at the orders of their employer or their contractual partner and if it could not have been reasonably expected of them to refuse committing the infringement due to their status of economic dependence (§ 159 PatG, § 42 GMG, § 35 MuSchG). With regard to copyright law, infringers who make unauthorized copies, talks or performances for their own use (or not for profit for somebody else’s own use) cannot be held criminally liable (§ 91 Abs 1 UrhG).
a. Criminal infringement of patents, utility models, and designs
A patent prohibits any third party from
· offering or supplying means relating to an essential element of the invention
· for the use of the invention to persons other than those entitled to use the invention,
· without the consent of the patent holder,
· if the third party knows or it is obvious from the circumstances that these means are suitable and intended to be used for the use of the invention (§ 22(3) PatG).
Anybody who intentionally infringes a patent in this manner commits a criminal offense (§ 159(1) PatG). Equivalent provisions apply to infringement of utility models (§ 4a(1) and § 42(1) GMG).
A registered design grants its holder the exclusive right to make use of it and to prohibit third parties from using it without his consent. The said use includes, in particular, manufacturing, offering, marketing, importing, exporting or use of a product in which the design is incorporated or to which it is applied, or the possession of the product for the said purposes (§ 4(1) MuSchG). Anybody who intentionally infringes a registered design in this manner commits a criminal offense (§ 35(1) MuSchG).
b. Criminal trademark infringement
The holder of a registered trademark has the right to prohibit third parties from
· using, in the course of trade and without his consent,
· any sign which is identical with, or similar to, the trademark
· in relation to goods or services,
o irrespective of whether or not such goods or services are identical with, similar to, or dissimilar to those for which the trademark is registered,
· if the trademark has a reputation in the national territory and if the use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trademark (§ 10(2) MSchG).
Anybody who intentionally infringes a trademark in the course of trade in this manner commits a criminal offense (§ 60(1) MSchG).
c. Criminal copyright infringement
Anybody who, intentionally and without being authorized to do so, makes use of a
· literary or artistic work in a manner of exploitation reserved to the author,
· performance in a manner of exploitation reserved to the performer or the organizer,
· photograph or a sound record in a manner of exploitation reserved to the producer,
· radio broadcast in a manner of exploitation reserved to the broadcaster,
· database in a manner of exploitation reserved to the producer, or
· press publication in a manner of exploitation reserved to the producer
thus commits a criminal offense (§ 86(1) UrhG). Further criminal copyright infringements include infringements of computer programs (§ 90b UrhG), technical measures (§ 90c(1) UrhG), and identifying indications (§ 90d(1) UrhG; § 91(1) UrhG).