IP, civil procedure and arbitration in Germany

As a change from the publication of Current Intelligence pieces and editorials, here's a recent JIPLP book review:

Intellectual Property Law in Germany: Protection, Enforcement and Dispute Resolution (2nd edn.), by Klett, Sonntag, and Wilske

Published by CH Beck, 2010, ISBN: 9783406545306, Hard cover, 628 pp. Price: €98.

Reviewed by Guido Westkamp (Queen Mary, University of London)

There is very little literature on German IP law in English. This book promises, according to the publisher, to close that gap, having predominantly a practitioner audience in mind. The book covers, by way of an introduction, all aspects of German IP law. In addition to the salient categories (trade marks, designs, copyright and neighbouring rights, patents and utility models, plant varieties), specific emphasis is placed on enforcement, including the recent changes brought about by European legislation in that area. In addition, the editors provide basic information concerning practical enforcement by way of both judicial proceedings, including interim injunctions, and arbitration and mediation. Much of the text consists of a translation of each relevant German IP statute into English, complemented by a brilliant glossary. This is welcome and doubtless reflects a great deal of excellence and linguistic skill.

Overall, the editors place much emphasis on the procedural and contentious aspects of enforcement. To that end, they provide the reader with textual samples of relevant legal documents such as briefs, tables of calculating court costs, and a highly commendable glossary of legal terms. These samples provide an impression of legal writing in Germany translated into English; the samples cannot, of course, be practically used by a UK practitioner to enter into communication with German courts. Likewise, arbitration and mediation aspects in IP cover much ground, certainly much more than would be expected in a volume primarily concerning IP law.

In that sense, coverage of substantive law, especially where written for a UK audience, could have been much more extensive. Mostly, coverage is constrained to brief introductions to statutory law. Detailed examination beyond the statutory text is more or less absent, and there is hardly any reference to current debates and problem areas or to the many important recent decisions by the Federal Court of Justice in, specifically, copyright, design, and trade mark law. Likewise, the important area of unfair competition law, and its role as a form of complementary protection would have been of utmost interest specifically to readers in the UK to grasp fully the architecture of German IP law.

The bibliography on German IP law in English is, disappointingly, extremely limited. Many works referenced relate to general procedural and arbitration aspects rather than substantive IP law. Despite the admitted lack of a voluminous body of good work here, one would have expected a more concise and structured bibliography.

Overall, this reviewer has doubts as to the merits of such undertaking. For a UK lawyer in particular, many substantive divergences between the UK and the German system remain inaccessible, and in the same vein—as the editors agree—this book cannot replace the services of a specialized German attorney. Certainly, the work provides a good introduction to fundamental IP issues and doubles as a rather good introduction to civil procedure and arbitration in Germany. The glossary in particular will render this work a commendable purchase—in particular, for speakers of German. To be sure, nothing more than an introduction is promised, and the book is certainly recommended as a reference point for gaining a basic impression.