A protective brief can stop a competitor from obtaining a preliminary injunction against your trade fair exhibit.
Trade fairs in Germany are a real opportunity for Turkish companies, and a real legal risk. Industrial property rights (Gewerbliche Schutzrechte) are enforced strictly, above all in patent, trademark and design protection, and a competitor can impose a swift and sudden ban before or during a fair by way of a preliminary injunction (einstweilige Verfügung).
The consequences are immediate: you cannot exhibit your products, your stand is closed, or your goods are seized at customs or on the stand itself. Worse, such bans are often enforced without prior notice and without your defence being heard.
The protective brief is filed with the German courts to meet exactly that risk: it prevents a preliminary injunction from being granted ex parte, and puts your company’s defence before the judge in advance. It is used above all against the patent and trademark infringement claims and the competition law complaints that surface around trade fairs.
This article sets out the preliminary injunction risks that arise at German trade fairs, how the protective brief works, and what a Turkish company can do to protect itself.
In summary, the purpose and function of the protective brief:
- Preventive legal protection: the affected party puts its arguments and evidence before the court before any decision is taken on a preliminary injunction application.
- Protection of the right to be heard: the court sees the respondent’s case, not only the applicant’s one-sided submission.
- Avoiding surprise: preliminary injunctions are often granted without prior notice, and a protective brief helps prevent a decision that lands without warning and disrupts trading.
Contents:
- Preliminary injunction risks at German trade fairs
- How Can Your Competitors in Europe Block You Using Customs?
- Stay One Step Ahead of Your Competitors With a Protective Brief
Preliminary injunction risks at German trade fairs
1. How Is a Preliminary Injunction Obtained on Grounds of Patent Infringement?
A patent holder may claim that a product on your stand uses its patented technology without authorisation.
The holder may rely on a national German patent, a European patent taking effect in Germany, a European patent with unitary effect or a German utility model (Gebrauchsmuster), and ask the court for a preliminary injunction ordering the immediate seizure of the product. A utility model is registered without any examination of novelty or inventive step (§ 8(1) GebrMG), so it can be obtained quickly before a fair and used against an exhibitor.
German courts can grant such injunctions quickly, and the commercial loss falls on the exhibitor even if the patent is later found to be invalid.
Abusive use. Large companies sometimes use the mechanism strategically, to defend market share or to keep foreign competitors away from the fair.
A scenario: how it happens.
An Asia-based technology company is exhibiting a new printing machine at an industrial fair in Germany.
- A European competitor applies to the court, alleging that its own patent has been infringed.
- The court issues a preliminary injunction within a few hours.
- The Asia-based firm must remove the printing machine from the fairground at once, or the customs authorities seize it.
- Even if the court later finds that there was no infringement, the firm’s commercial loss has already been suffered.
2. How Is a Preliminary Injunction Obtained on Grounds of Trademark Infringement?
A firm may go to court claiming that the mark used at the fair conflicts with its own registered trademark.
A registered German mark gives strong protection. But if it has not been put to genuine use in the five years before the claim is asserted, the defendant can raise the non-use objection (§ 25 MarkenG) and the mark becomes revocable (§ 49 MarkenG). An injunction resting on an unused mark is weak against that defence.
The court may order the immediate removal of products and advertising materials.
A scenario: how it happens.
A Turkish electronics firm is presenting a new device series under the “XENOS” brand at the fair.
- A German competitor registered the trademark “XENOS Technologies” 10 years ago but does not actively use it.
- It applies to the court for a preliminary injunction, and a decision follows within a few hours.
- The Turkish firm must remove all advertising materials at once and cannot use its brand at the fair.
- Even if the trademark claim later proves to be unfounded, the firm’s commercial loss is by then difficult to reverse.
3. Design Right (Design Protection) Infringements
How Is a Preliminary Injunction Obtained on Grounds of Design Infringement?
A firm may claim that your product resembles its own registered design.
In EU and German design law the test is not visual similarity but whether the design produces a different overall impression on the informed user (Article 10 of Regulation (EC) No 6/2002; § 38(2) DesignG), account being taken of the designer’s degree of freedom.
The court may grant a preliminary injunction and order the immediate removal of the products.
A scenario: how it happens.
A Chinese furniture manufacturer is presenting a new chair series at a fair in Germany.
- A German competitor claims to hold an earlier registered design right for a very similar design.
- The court issues a preliminary injunction, and all of the Chinese firm’s chairs are removed.
- At the fair, the firm can neither display its products nor sell them.
4. Unfair Competition Infringements and Unfair Commercial Practices
Misleading Advertising (§ 5 UWG)
If a company advertises with untrue or unverified claims, its competitors may apply for a preliminary injunction.
Example: a firm that advertises “patented technology” when there is in fact no patent application or registration at all may be advertising misleadingly.
The court may order the immediate removal of all advertising materials and prohibit their use.
Example Scenario:
A company is presenting a new electronic device at the fair with the slogan “groundbreaking new patented technology”.
- A competitor applies to the court, saying the claim is false and that no patent exists.
- The court finds the advertising misleading and requires the firm to remove all of its promotional material.
- The firm cannot market its product, and its reputation suffers badly.
Exploitation of Reputation and Protection Against Imitation (§ 4 UWG)
A competing firm may claim that a product exhibited at the fair copies another company’s well-known product and takes unfair advantage of that brand’s reputation.
For well-known brands in particular, excessive similarity between the products can by itself be enough to support a preliminary injunction.
The court may order the product removed from the fair and the firm excluded from the exhibition area.
Example Scenario:
At an international fashion fair, a firm exhibits a design that closely resembles a popular brand’s sneaker.
- The competing firm applies to the court, claiming that the design belongs to its own product and that its reputation is being exploited.
- The court orders the sneakers removed from the fair and prohibits the firm from any promotion.
- The company loses a major commercial opportunity, and its brand reputation is seriously damaged.
How Can Your Competitors in Europe Block You Using Customs?
A competitor can stop you before the fair, not only during it.
Detention of goods at customs on the basis of intellectual property infringement claims is a common problem across Germany and the EU.
A competitor files an application with the customs authorities alleging that your products infringe a patent, trademark or design right.
German Customs (Zoll) then holds your goods on entry into Europe for inspection.
How Does the Customs Process Work?
• Customs authorities may detain consignments arriving from a third country for 10 working days (three working days for perishable goods) from notification, and that period may be extended by up to a further 10 working days (Article 23 of Regulation (EU) No 608/2013). Under the national seizure procedure that applies to intra-EU movements the period is two weeks from service of the notification (§§ 146-147 MarkenG; § 142a PatG).
• If, within that period, the holder of the decision does not confirm its view that the goods infringe and either request destruction or initiate proceedings to determine infringement, the products are released; under the national procedure an enforceable court decision is required.
• Many competitors use that window to obtain a preliminary injunction and prolong the process, leaving your goods in customs for weeks or even months.
Worst-Case Scenario: Products That Do Not Reach the Fair in Time and Commercial Losses
- Your products are held at customs and do not reach the fair in time.
- While your competitors exhibit their products, you attend the fair empty-handed.
- You suffer a loss of reputation, and customers turn to your competitors.
- Your products may be held for weeks or even months, and may even be destroyed.
Stay One Step Ahead of Your Competitors With a Protective Brief
Protective Brief (Schutzschrift)
What Is a Protective Brief (Schutzschrift)?
A protective brief puts your company’s own defence before the court before a preliminary injunction is issued. The judge then weighs your legal position instead of acting at once on the one-sided arguments presented by your competitor.
✔ It prevents the court from issuing a preliminary injunction based solely on your competitor’s claims.
✔ It secures your right to be heard and restores balance to the proceedings.
✔ It removes the surprise element of an interim injunction, so you can carry on at the fair.
What a Protective Brief Achieves
It Prevents Ex Parte Decisions:
Courts often grant preliminary injunction applications quickly, without hearing the other side. Where a protective brief is already on file, the judge must take your company’s arguments into account as well.
It Provides Protection Against Unfounded Claims:
A competitor may try to halt your trading with claims of patent, trademark or design right infringement. By setting out in advance how your company would defend itself against a preliminary injunction, the protective brief substantially reduces the likelihood of the court deciding on your competitor’s account alone. In urgent cases the court may still decide without an oral hearing (§ 937(2) ZPO); the function of the protective brief is to prevent that decision being taken without your arguments having been seen.
It Prevents Commercial Loss:
A preliminary injunction can force you to close your stand at the fair, surrender your products or take down your advertising. By showing the court that such an order would cause disproportionate harm, the protective brief can forestall it.
It Discourages Weak Applications:
Where the competing firm’s claim is weak, a protective brief on file can lead to the application being dismissed outright — and can deter competitors from bringing unnecessary proceedings at all.
In Which Situations Should a Protective Brief Be Filed?
- You expect to be targeted at customs or at the fair with a patent, trademark or design right claim.
- Your competitors are known to have obtained preliminary injunctions before.
- A competitor has already sent you a warning letter.
- A competitor may complain against you under unfair competition law (UWG) on grounds of misleading advertising or exploitation of reputation.
- You are exhibiting in Germany, or shipping products there, and want to keep an unexpected court decision from disrupting your business.
When and Where Should a Protective Brief Be Filed?
✔ It should be prepared and submitted to the court at least a few weeks before the fair.
✔ The Schutzschrift must be registered in the Zentrales Schutzschriftenregister (ZSSR), so that whenever a preliminary injunction is applied for, the courts are obliged to review it. An entry in the ZSSR counts as filing only with the German ordinary courts (§ 945a(2) ZPO). Since 01.06.2023, provisional measures based on a European patent — with unitary effect, or a classical European patent not opted out — may be sought at the Unified Patent Court, which requires a separate protective brief lodged with the UPC Registry (Rule 207 RoP).
How Long Is a Protective Brief Valid?
✔ Protective Briefs are valid for 6 months and, at the end of this period, are automatically deleted from the system by the courts.
✔ If your commercial activities are still at risk, you must renew your Protective Brief before it expires.
✔ If you do not renew it, your competitors may apply to the court again to obtain an injunction, and this decision may be enforced until you file a new defence.
✔ If you exhibit in Germany regularly, filing a fresh protective brief before each fair is the safer course.
Summary: How Can You Protect Yourself With a Protective Brief?
Commission an FTO (Freedom to Operate) analysis: document that your product does not infringe any industrial property right.
File a Schutzschrift (protective brief): where there is a real risk of a preliminary injunction, go to the court in advance and put your defence on file.
- Prevents ex parte preliminary injunctions
- Neutralises competitors’ unfounded applications
- Requires the courts to hear your defence
- Lets you carry on trading at the fair
If you are planning to exhibit at a trade fair in Germany, a protective brief (Schutzschrift) belongs in your preparations. Contact us in good time to have one prepared.
