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IP Marking in Germany: Rules of Thumb

In Germany IP marking is not mandatory. However, IP marking may have the advantage, besides marketing aspects, that competitors are warned of the IP protection and that a malicious act of the competitor can be more easily argued before court, in case of patent infringement.

However, when products comprise any type of patent marking, the IP owner/distributor is legally obliged to provide information of the granted patent or patent application upon request by third parties (§ 146 PatG). The same applies to utility model markings (§ 30 GebrMG) and design markings (§ 59 DesignG). Moreover, it should be kept in mind that erroneous, deceptive or false IP marking is illegal under unfair competition law according to § 5 S. 2 Nr. 3 UWG.

According to German case law the English term “patent pending”, or any abbreviation of it, will be generally interpreted as if a patent has been granted. Thus, marking a product with “patent pending” when a corresponding patent has not been granted will be seen as false IP marking.

The following suggestions for patent marking are usually acceptable in Germany:

The patent application has been published:

The patent has been granted in Germany:

The patent has been granted in Germany and another foreign country:

The patent has been granted in a foreign country, but not in Germany:

Last but not least, marking with ® and TM commonly used in English speaking countries for trademarks is also not obligatory in Germany and does not belong to the common German practice. However, if used both of these symbols are interpreted as if the trademark is registered in Germany.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Authors

Dr Yun-Suk Jang

Technical Expert

Patent Attorney Trainee

Chemist

Dr Norbert Hansen

Partner

German Patent Attorney

European Patent Attorney

Chemist