Trade fairs in Germany give companies real opportunities to gain visibility in the global market, form new business partnerships and increase sales. But a fair does not end with the exhibition of the products: legal risks may continue after it as well. In particular, competitors may apply for preliminary injunctions and customs detention in order to block your products or stop your sales once the fair is over.
The protective brief (Schutzschrift) should therefore be planned and filed so that it protects you not only during the fair but in the period that follows. What follows sets out how long a protective brief remains valid, the legal steps to watch for after the fair, and how to protect your commercial activities.
For a fuller account of the protective brief, see: Secure Your Fair Participation in Germany: Protect Yourself Against Your Competitors’ Preliminary Injunctions with a Protective Brief
Validity of the Protective Brief: Duration and Renewal
How long is a protective brief valid?
A protective brief counts as filed with every German ordinary court from the moment it is entered in the central register (ZSSR), and is deleted from the register six months after that entry (§ 945a(2) ZPO). Once the six months are up, your brief disappears from the court system and is no longer taken into account in preliminary injunction proceedings. If your commercial activities continue after the fair and the legal risks persist, you must file again before that period expires.
✔ After 6 months the brief is deleted from the register automatically. Provisional measures based on European patents may be sought at the Unified Patent Court; a protective brief there is lodged with the UPC Registry and is removed six months after receipt if no application for provisional measures is made, but it can be extended for further six-month periods on request against payment of the extension fee (Rule 207 RoP). A ZSSR entry cannot be extended; a fresh filing is required.
✔ If you do not file again in time, the courts will not have your brief in front of them when they consider a competitor’s application for a preliminary injunction.
✔ Once the brief has been deleted, competitors may try to block you again with fresh applications.
Recommendation: if you exhibit in Germany regularly, filing a fresh protective brief before each fair is the prudent course.
Why Might You Need a Protective Brief After the Fair?
Even where no preliminary injunction is issued at the fair itself, competitors may try to stop your sales by legal means afterwards. Three scenarios are common:
1. Having seen your products at the fair, competitors gather fresh evidence and take you to court.
2. Delivering to customers who ordered at the fair, you run the risk of being stopped at customs.
3. Competitors apply for a preliminary injunction after the fair and halt sales of your products by court order.
Plan your protective brief, then, to cover not just the days of the fair but everything that follows it.
Post-Fair Legal Risks and Methods of Protection
1️⃣ Proceedings competitors may bring after the fair
Once the fair has closed, competitors have several routes open to them:
✔ They may sue for patent infringement in order to block your products.
✔ They may threaten your customers and distributors with trademark infringement claims.
✔ They may apply to have your goods detained at customs.
The way to meet all three is to extend the protective brief so that it covers the post-fair period as well.
2️⃣ Customs after the fair
Customs is one of the routes competitors use to stop sales once the fair is over.
When you ship to customers in Germany and elsewhere in Europe, a competitor can have your goods detained simply by reporting them to the customs authorities. In practice you may meet the following:
✔ A competitor starts the customs detention (Grenzbeschlagnahme) procedure by claiming that your products infringe intellectual property rights.
✔ Customs may detain the goods for 10 working days from notification (three working days for perishable goods), extendable by up to a further 10 working days (Article 23 of Regulation (EU) No 608/2013). Under the national procedure applying to intra-EU movements the period is two weeks (§ 147 MarkenG; § 142a PatG).
✔ If the trademark or patent holder does not obtain a preliminary injunction or a final court decision within that period, the goods may be released.
✔ Where a competitor does obtain a quick injunction, however, the process drags on and your goods may sit at customs for weeks or months.
If you plan to ship to Germany or other European countries after the fair, your protective brief must therefore cover the customs stage too.
Recommendation:
✔ Deal with the customs authorities proactively and document the legal position of your products in advance.
✔ Customs seizure is an administrative procedure in which the protective brief plays no part; what matters there is the two-week period for lodging an objection (Widerspruch) and withholding consent to destruction. The protective brief bites once the right holder goes to court for an injunction — which is why it should be drafted to cover your post-fair shipments and sales as well.
✔ Check whether your competitors have filed customs detention applications in the past.
When Should You Renew the Protective Brief?
✔ If you exhibit at German trade fairs regularly or ship goods there, filing a fresh protective brief before each fair or shipment is the prudent course.
✔ Bear in mind that competitors may come back with new legal arguments to undercut your earlier brief. When you file again, take account of legal developments since.
✔ Protect your sales by filing a wider brief that covers post-fair orders and shipments.
Conclusion: if you exhibit at German trade fairs regularly, or expect competitors to try to block you by legal means, the sensible course is to renew your protective brief before each fair and whenever the risk of a preliminary injunction rises.
Used deliberately, the protective brief protects your customs procedures and your sales after the fair as well as during it.
