NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE

A. PRIMARY AND SECONDARY LAW

The Enforcement Directive was transposed into national law with the Act for the Improvement of the Enforcement of Intellectual Property Rights, which came into effect on September 1, 2008. This Act contained specific amendments to preexisting acts concerning intellectual property rights.

According to the explanatory statement by the ministry of justice attached to the fi rst draft of the transposition law, this law did not exclusively serve the purpose of transposing the Directive into national law. Additionally, it was supposed to amend the national law so as to streamline it with the European Regulation no. 1383/2003 of the Council dated July 22, 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights. Additionally, the law was supposed to close the gaps in the criminal liability for the unjustified use of geographical indications and indications of origin for agricultural products and food.

The German legislator was of the opinion that with the German Act for Fighting Product Piracy dated March 7, 19902 it had already introduced effective measures and procedures for improving the enforcement of intellectual property rights. According to the German legislator, the Enforcement Directive ties in with this law.

The German legislator had previously decided to do without a general intellectual property code, such as for instance the French Code de la Propriété Intellectuelle. The German traditional approach preferred to introduce rules for the different types of intellectual property rights in separate laws, including the Patent Act, the Utility Model Act, the Trademark Act, the Act on the Protection of Topographies and Microelectronic Semiconductor Products (“Semiconductor Protection Act”), the Copyright Act, the Design Act and the Plant Variety Protection Act. This issue was brought up again in the discussion of the transposition law. However, it was decided to continue the traditional approach and to keep the acts separate.

The amended pre-existing laws included: