destruction claim

The destruction claim is directed toward the destruction of goods and articles produced by the trademark violator. There is, however, no claim on the way things are destroyed. This is only given in case a technical issue exists with regard to the destruction and the destruction is not disproportionate to other ways of removing the goods. However, this is rarely the case and is only possible if there are different removal options. In order to defend himself, the violator must provide all evidence.

Destruction has to take place whenever the option for removal of the trademark is not possible, for example, a print on a T-Shirt. The destruction claim, according to Paragraph 18, Trademark Law, is not a separate violating act, but supports the regulations outlined in Paragraphs 14, 15, 17, Trademark Law. Therefore the destruction claim is encompassed by the Removal claim.

The owner of a brand, as well as possible licensees with agreement of the licenser, have the right to claim destruction of the violating goods.

The target is not only the violator, as the owner or user of trademark-damaging material. The claim can also be targeted against uninvolved owners of the material that the violator is using to create the offending goods. As well as against uninvolved users of the goods owned by the violator. One cannot expect the third parties to destroy the brand-damaging goods, but they must accept that the destruction will be carried out.

All illegally branded goods, according to Paragraphs 14, 15 and 17, Trademark Law, are covered by the destruction claim. Therefore, not only the commodity itself, but also the packaging and other trademark related material, fall under the destruction claim. This also includes advertising material and business documents. It's already enough that the brands can be seen through aids, such as computer programs.

In accordance with Paragraph 18, Clause 2, Trademark Law, things such as so called Branding devices, including machines and any device that can place a brand onto a product, falls under the destruction claim. Other examples are packaging machines, prints, forms, negatives and so on.

A violator is considered everyone that committed, or participated in the unlawful acts, which are stated in Paragraphs 14, 15 or 17, Trademark Law. Therefore, it makes sense that the destruction claim is directed against everyone that distributes trademark-damaging goods, even if he acted in good faith. The destruction claim, however, is not directed against private people, who acquire or possess those goods as final consumers and who do not have the intention to use the goods for business purposes.

Material safeguard rights for third parties, or retention of title agreements, do not exclude the destruction claim.

If the violator should refuse the destruction, then the bailiff can take away the goods that were being presented in court and even destroy them. The cost of the destruction goes to the brand violators, in accordance with Paragraph 788, Civil Proceedings Regulation.

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