Turkish companies exhibiting at trade fairs in Germany, and companies caught up in disputes over industrial property rights — trademarks, patents, designs, copyright and unfair competition — can protect themselves against a possible preliminary injunction (einstweilige Verfügung) by filing a protective brief (Schutzschrift).
What makes such a brief work is, more often than not, the eidesstattliche Versicherung — the affidavit — attached to it. An affidavit is a statement of fact that lends credibility to the defence and can change the direction of the proceedings.
Why Is an Eidesstattliche Versicherung (Affidavit) Important?
In Germany an injunction can be granted in urgent cases without an oral hearing (§ 937(2) ZPO), although since the Federal Constitutional Court’s decision of 30 September 2018 the respondent’s position must as a rule already be part of the proceedings. Against that background, the affidavit is one of the strongest instruments available for showing that the other side’s account is untrue.
Interim injunction proceedings call not for full proof but for a prima facie showing (Glaubhaftmachung), and at that stage the affidavit is the most practical instrument there is (§ 294 ZPO). It is not, however, among the admissible means of proof in the main action.
Its force lies in content rather than argument: it puts concrete facts, stated by someone who knows them at first hand, alongside counsel’s legal submissions, and it can show the judge that the injunction is unjustified or unnecessary.
This matters most at trade fairs. Where a company is met with a preliminary injunction based on an alleged trademark, patent or design infringement, an affidavit can persuade the court that the claim is unfounded.
When Should an Affidavit Be Used in a Protective Brief?
Priority of Rights and Prior Use
To show that you used the product, trademark or design before the party seeking the injunction did.
Example: “Our product reached the market before the product offered by [competitor], and the first use is ours.”
No Likelihood of Confusion Between the Products or Signs
To show that there is no similarity between your products or signs and those of the applicant.
Example: “I first used the sign [X] for [product] on [date]; the attached [catalogue / invoice / trade fair record] shows that date.” An affidavit may state only facts the declarant knows personally; whether the signs are similar, and whether the public is likely to be confused, is an assessment that belongs in the legal submissions.
Rebutting Allegations of Unfair Competition and Misleading Commercial Practices
To show that the competition was fair and that no unfair advantage was obtained.
Example: “We have not engaged in any commercial activity that misleads our customers.”
Showing That the Product Came Out of Your Own R&D
To document that the product was developed independently and does not infringe the competitor’s patent or design right.
Example: “Our product was developed entirely independently and draws on no competitor’s technology.”
Who Can Give an Eidesstattliche Versicherung (Affidavit)?
An affidavit carries weight in court only where the person giving it has direct knowledge of the facts stated. In practice that means the following.
Company officers — the CEO, the general manager, the chairman of the board — can speak to the product’s history, its market-launch date and the rights of use.
Product development and engineering staff know at first hand how the product was designed and built.
Sales and marketing managers can speak to the launch, the commercial use of the product and the way it was presented to consumers.
Privately instructed technical experts may attest by affidavit to technical facts such as the structure, dimensions and operating principle of the product, and may submit their technical assessment separately as a private expert opinion (Privatgutachten). A court expert, by contrast, is appointed by the court (§§ 402 ff. ZPO), and whether there is an infringement is a legal assessment for the court.
A false statement is a criminal offence under § 156 of the German Criminal Code (StGB) and can carry serious consequences. For that reason, only a person with direct knowledge should give an affidavit.
Conclusion: Should an Affidavit Be Used in a Protective Brief?
Yes. The affidavit is one of the elements that does most to make a Schutzschrift (protective brief) effective. Concrete evidence put before the court can persuade the judge that the injunction is unjustified, and in the trademark and design disputes that arise at trade fairs a properly prepared affidavit can help to have the application refused.
Two conditions govern all of this: the statement must rest on accurate information, and the person giving it must have direct knowledge — otherwise it carries legal consequences of its own. If you are exhibiting at a trade fair in Germany and carry the risk of an injunction, the affidavits attached to your protective brief can strengthen your position in court.
