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handover claim


Trademark Law, does not have it's own handover claim, as opposed to copyright Law. Handover claims are dealt with differently in Trademark Law, than for example in Copyright Law, (see Paragraph 98, Clause 2.) The trademark owner cannot therefore demand the brand violator to handover the pirate-copied goods, instead of destroying them. The trademark owner also cannot demand that the violator hands over the machines and devices used for the production of the pirate-copied goods. The protection of the Trademark Law thus remains behind that of Copyright Law.

In rare circumstances, the trademark owner can demand the handover of the pirate-copied goods from the brand violator, but only for the purpose of destruction, according to Paragraph 18, Trademark Law. The borders are to be closely drawn here. However, the Supreme Court considers possible a procedural request possible for the handover of the goods, if a handover to the bailiff or the plaintiff is required for the purpose of the destruction. This is possible in certain cases if the danger exists that the violator could reuses the goods in a different way and in doing so, continue the unlawful act. Thus destruction is guaranteed by the handover claim.

One should consider that in view of the clear wording of the law, there is no room for the reinterpretation of the destruction claim into a handover claim, which doesn't exist in Trademark Law. A similar reinterpretation of the copyright regulations is also not possible, because Trademark Law has the characteristic of lex specialis.


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