Die Haftung in der Verletzerkette

The negligent infringement of an intellectual property right within a production and distribution chain results in overlapping responsibilities of each infringer. The infringers are jointly and severally liable for lost profits. The profits are lost once the intellectual property right holder's claim for destruction of the infringing goods can no longer be realized which is usually the case once the good reaches the final consumer. The infringers can also be jointly and severally liable to pay a license fee due to unjust enrichment. The joint and several liability is confined to the lowest license that would have had to be paid within the production and distribution chain. To be able to demand the payment of a license fee the holder of the intellectual property right has to legalize the infringements by granting his approval to the process of production and distribution. The holder of the intellectual property right can cumulatively claim disgorgement of each infringer's individual profit. An infringer has not achieved a profit if other infringers have the right to take recourse against him. The claims for lost profits, for payment of a license fee and for disgorgement of profits can be combined: All infringers are jointly and severally liable for lost profits and to pay the license fee. Depending on which claim is higher, the joint and several liability covers the highest lost profit the intellectual property right holder could have achieved or the lowest license fee that would have had to be paid by any of the infringers. The liability is only joint and several as far as the infringers have the possibility to take recourse against each other. As far as there is no right to take recourse, the intellectual property right holder can cumulatively claim disgorgement of each infringer's individual profit. Contrary to rulings of the German Federal Court of Justice, the intellectual property right holder should not be cumulatively granted claims for payment of a license fee and for the destruction of the infringing goods.