Criminal defense for Trademark and Copyright Infringement in Bonn

In brief: Use of a protected sign in the course of trade, or unauthorised exploitation of a copyright-protected work. The sentencing range is Up to 3 years imprisonment or a fine; 3 months to 5 years where committed on a commercial basis (Section 143(2) MarkenG) (§ 143 MarkenG; § 106 UrhG). What matters is the evidence – we assess it after obtaining the case file.

Legal Basis

§ 143 MarkenG; § 106 UrhG

Sentencing Range

Up to 3 years imprisonment or a fine; 3 months to 5 years where committed on a commercial basis (Section 143(2) MarkenG)

Summary

Use of a protected sign in the course of trade, or unauthorised exploitation of a copyright-protected work.

Two provisions that cover the same everyday situations and are nonetheless cut differently. Section 143 of the Trade Mark Act requires use in the course of trade. Section 106 of the Copyright Act does not.

Section 143 MarkenG and the limit of trade use

Only a person who unlawfully uses a protected sign in the course of trade commits the offence. Someone stopped by customs with three pairs of counterfeit sneakers for personal use is not acting in the course of trade. Import duties and confiscation under Section 143(5) MarkenG may follow, but not a penalty. The position differs for sales via classified-ad platforms or Instagram, where quantity, repetition and pricing establish participation in the market.

Prosecutors are quick to allege the step up to Section 143(2) MarkenG, that is, acting on a commercial basis with a range of three months to five years. Only a concrete analysis of the individual sales counters that.

Section 106 UrhG

Reproducing, distributing or publicly communicating a work without the rightholder’s consent, in cases other than those permitted by law: up to three years of imprisonment or a fine, with attempt punishable. The cases permitted by law are the key, in particular the private copy under Section 53 UrhG. In BitTorrent file sharing it is unavailable, because distribution occurs at the same time. Mere stream consumption is assessed differently from uploading.

Both are complaint offences

Section 143(4) MarkenG and Section 109 UrhG make prosecution dependent on an application, unless the prosecuting authority assumes a particular public interest. Rightholders pursue civil remedies first, because that is where the warning costs and damages lie. A civil settlement with a cease-and-desist undertaking therefore frequently leads to withdrawal of the criminal complaint.

The sequence matters: a cease-and-desist undertaking regularly contains an admission of the facts. It should not be signed while the criminal side remains unresolved.

Summons or accusation of Trademark and Copyright Infringement? What matters now

Two things matter immediately: say nothing to the police about the allegation – you are never obliged to – and have your defense obtain the investigation file first. In detail: your rights as an accused person, responding to a police summons.

Possible discontinuation of proceedings

Not every case ends in a trial. Depending on the evidence and any prior record, the proceedings may be discontinued for lack of sufficient suspicion (§ 170 II StPO), for triviality (§ 153 StPO) or subject to conditions (§ 153a StPO). Often a penalty order without a public trial can be achieved.

Victim-offender mediation and restitution

In many cases, victim-offender mediation or making good the damage (§ 46a StGB) can significantly reduce the sentence or enable a discontinuation. Whether this is advisable in your case is something we assess based on the file.

What we do after reviewing the file

We assess the evidence, look for procedural errors and negotiate with the prosecution about a discontinuation.

Available 24/7: +49 228 504 463 36

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.