What exactly is legal design

What is the legal situation regarding replicas?


As in so many legal matters, replicas of designer furniture (also known as plagiarism) are repeatedly discussed as to how the legal situation in Germany and other countries should be interpreted. Therefore, the following points should serve as a small guide to the current legal situation.

German copyright law - spoilsport for plagiarism manufacturers.

The fact that plagiarism of designer furniture in this country can only be bought from foreign suppliers is based on the prevailing copyright law. In Germany, it is not allowed to copy designer furniture. Anyone who produces the famous design classics in this country without a license is violating copyright law. In Germany, a significantly more extensive copyright law is applied to protectable designer furniture than in other countries. While in this country the determining copyright for the protected goods and products did not expire until 70 years after the author's death, other countries use this for example. B. only 25 years, still others do not provide any regulations.

In Italy, for example, the furniture classics were not or only partially protected by copyright from 2002 to 2007. Many traders took advantage of this hiding place: They produced the popular furniture “legally” in Italy, advertised these replicas in Germany and then delivered them to German customers via forwarding agents. In the meantime, the "replica traveling circus" is mostly in Great Britain in order to produce the replicas from the legal gray areas there and to deliver them to countries such as Germany or Denmark.

How is the role of the freight forwarders involved to be assessed legally?

For a long time the question arose as to whether forwarding companies that bring plagiarism into Germany that violate German copyrights are acting illegally. In 2012, the European Court of Justice (ECJ) decided to answer this question with a clear “yes”: The German managing director of a forwarding company that delivered such plagiarism to Germany was convicted by the Munich Regional Court of aiding and abetting the unauthorized commercial exploitation of copyrighted works.

This judgment was confirmed by the Federal Court of Justice (BGH) and the ECJ. Interesting: Many manufacturers of replicas refer in their "We act legally" propaganda to the fact that the free movement of goods guaranteed in the European Union gives you the right to deliver your counterfeit products to EU countries. However, it is precisely this argument that was undermined by the judgment of the ECJ. The judgment said that the criminally sanctioned ban on the distribution of such copies is a legitimate obstacle to the free movement of goods because it serves to protect industrial and commercial property. The ECJ has thus made it clear that German copyright law may override the right to free movement of goods in the EU in this regard. (For more information see e.g. Focus Online or Haufe.de/Recht)

Do commercial buyers of plagiarism make themselves liable to prosecution?

Customers from the commercial, business environment make themselves liable to prosecution when buying replicas. There are already some stories circulating about z. B. Hotels that had to vacate their newly furnished foyer with replicas and pay compensation. Medical practices and law firms with replica interiors must also expect similar consequences.

What is the legal situation for private replica buyers?

Private individuals who buy replicas for their private, domestic use are currently not being prosecuted. That’s the theory. If we take the example of freight forwarders, however, a private replica buyer can quickly get the feeling that he is involved in a deal with smuggled goods. Because it is a very uncomfortable situation for the private buyer to know that the freight forwarder who delivers his “hot goods” is already clearly acting illegally.

And there is even more discomfort when the freight forwarder is discovered during an inspection and the private buyer has to be documented as the recipient of the goods in this illegal case. In concrete terms: everyone who buys replicas accepts that this will make someone else liable to prosecution for them. This does not apply to those who use the “self-import” model and who personally pick up their counterfeit abroad. Although this seems a bit complex for the price-conscious replica buyer.

Private individuals who already have replicas should bear in mind that they are liable to prosecution under German copyright law as soon as they resell their replicas. This is particularly painful for those who, even at the moment when they offer their good piece for sale (possibly with the original name of the product and designer) still believe that they own an original, but which is a plagiarism.

Of course, our individual sense of justice is very different. Some feel extremely uncomfortable when a legal gray area is even within sight of them, while others are already in the middle of a gray area with their activities and perhaps feel right at home on the threshold of illegality. In case of doubt, an overly sensitive early warning system for legal matters seems to be better in any case than unintentionally falling into illegal pitfalls - as the example of replicas impressively demonstrates!

Get in touch if you have any further questions or information about the legal background to replicas, I am always happy to hear from you!