Forgery, Counterfeiting and Intellectual Property Crimes

Forgery, Counterfeiting and Intellectual Property Crimes in Germany – Criminal Defence Lawyers in Frankfurt

Introduction: Protecting Intellectual Property and Criminal Liability for Counterfeiting

The infringement of intellectual property rights through forgery or counterfeiting – such as brand piracy, design and patent infringements, or copyright violations – is comprehensively punishable under German criminal law. Law enforcement focuses not only on prosecution and penalties, but also on prevention through effective protection mechanisms.

Below you will find a systematic overview of the criminal provisions, key offences, aggravating circumstances (such as commercial or gang activity), procedural aspects, and the current enforcement practice in Germany.

1. Criminal Offences under Trademark Law

1.1 Identity and Confusion Protection

According to Section 143 (1) No. 1 of the German Trademark Act (MarkenG), anyone who, in the course of trade and without the owner’s consent, uses an identical or similar mark for identical or similar goods or services, thereby creating a likelihood of confusion, commits a criminal offence.

This includes:

• Affixing the mark to goods, their packaging or presentation,
• Offering, selling, possessing, importing or exporting such goods,
• Using the sign in business papers or advertising.

1.2 Protection of Well-Known Marks

Section 143 (1) No. 2 MarkenG protects the distinctiveness and reputation of famous trademarks.
The use of identical or similar signs for dissimilar goods or services is punishable if it unjustifiably exploits or harms the reputation of a well-known mark.

1.3 Preparatory Acts of Trademark Infringement

Preparatory acts such as affixing marks on packaging, labels, tags, or possessing, offering, importing or exporting such items are also punishable under Section 143 (1) No. 3 MarkenG when intended for later unlawful use.

1.4 Requirements for Criminal Liability

Criminal liability applies only when no statutory limitations or exceptions permit the use.
If a trademark is cancelled retroactively, criminal liability ceases. Pending civil cancellation proceedings may lead to suspension of the criminal trial.

2. Unlawful Use of Business Designations

2.1 Protected Business Names

Protected business designations include company names, trade names, slogans, abbreviations, logos, domain names and work titles (such as titles of books, films, software or music). Protection arises once the sign is used in commerce with distinctive character.

2.2 Exclusive Rights of the Owner

The owner enjoys exclusive rights (§ 15 MarkenG), including the right to injunctive relief and compensation.

2.3 Criminal Acts

• Identity and confusion protection: Unauthorised use of an identical or similar mark creating confusion is punishable (§ 143 (1) No. 4 MarkenG in conjunction with § 15 (2)).
• Protection of reputation: Even without confusion, using a sign that exploits or harms the distinctiveness or reputation of a famous business name is punishable (§ 143 (1) No. 5 MarkenG in conjunction with § 15 (3)).

3. Aggravating Circumstances: Commercial and Organised Offences

3.1 Commercial Activity

A person acts on a commercial basis if they repeatedly commit offences to establish a continuous source of income of some duration and significance (§ 143 (2) MarkenG).
Even regular online sales can suffice.

Legal consequences:

• Increased penalties – up to five years’ imprisonment or a fine,
• Official prosecution ex officio (no prior complaint required).

3.2 Organised or Gang-Related Offences

If committed as part of a criminal group (Bande) of at least three persons formed to repeatedly infringe IP rights, this constitutes an aggravating circumstance (§ 143 (2) MarkenG).

4. Prosecution and Complaint Procedure

4.1 Basic Offences – Complaint Required

Most IP offences require a complaint by the injured party, unless a special public interest exists (e.g. prior convictions, significant damage, or consumer risk).

• Entitled to file a complaint: the rights holder, exclusive licensee, or domestic representative.
• Deadline: three months from knowledge of the offence and offender (§ 77b StGB).

4.2 Qualified Offences – Ex Officio Prosecution

Commercial or organised offences and most qualified forms are prosecuted ex officio. Private prosecution is excluded in these cases.

4.3 Enforcement Practice

In practice, most proceedings are initiated only upon complaint. Such complaints are often used to obtain information for subsequent civil proceedings and are sometimes withdrawn after a civil settlement. Law enforcement increasingly focuses on large-scale or commercial infringements.

5. Criminal Offences in Other Intellectual Property Rights

5.1 Patent Law (§ 142 PatG)

Covers product and process patents.
Using an ungranted patent is not punishable. Indirect infringements are not explicitly criminalised but may be punished as aiding or abetting.

5.2 Utility Models (§ 25 GebrMG)

Protects the exclusive right to use the utility model.
Indirect infringement is also not directly punishable.

5.3 Design Law (§§ 51, 65 DesignG)

Covers the manufacture, marketing, import, export and use of a protected design without consent. Only registered designs (national or EU) are protected.

5.4 Copyright Law (§§ 106–108a UrhG)

Covers virtually all economically relevant unauthorised uses of works, such as reproduction, distribution, public communication, or false attribution of authorship.

5.5 Plant Variety Protection (§ 39 SortSchG)

Protects registered plant varieties and derived products from unauthorised production, marketing or import/export.

5.6 Semiconductor Protection (§ 10 HalblSchG)

Covers the copying, distribution or marketing of protected topographies and semiconductor products.

6. Confiscation and Publication of Convictions

6.1 Confiscation

Confiscation extends to products, tools and goods used in or resulting from the offence (§§ 143 (5) MarkenG, § 142 (5) PatG, § 51 (5) DesignG, § 110 UrhG).
If the injured party holds a civil destruction claim, that takes precedence.

6.2 Publication of Convictions

At the rights holder’s request, the court may order public announcement of the conviction where justified (e.g. to prevent market confusion or protect consumers).

7. Interpretation and Legal Specifics

Criminal provisions that refer to civil prohibitions must comply with the constitutional principle of legal certainty (Article 103 (2) GG).
Analogy is excluded. In EU-harmonised areas, courts must ensure that Union-law interpretation aligns with German legal-certainty standards.

FAQ: Forgery, Counterfeiting and Brand Piracy in Germany

What counts as trademark infringement?
Using identical or confusingly similar marks in commerce without consent is punishable (§ 143 MarkenG). See also our White Collar Crime section.

When is an offence considered “commercial”?
When repeated acts aim to create ongoing profit. This leads to higher penalties and ex officio prosecution. More on Organised Crime and Economic Offences.

Is a complaint required?
Usually yes. The rights holder must file within three months (§ 77b StGB). See German Criminal Procedure.

Can goods and profits be confiscated?
Yes. Confiscation applies to products, tools and related assets. Learn more under Criminal Defence in Germany.

What happens during searches or seizures?
Stay calm, sign nothing without review, and contact a lawyer. More on Investigation Procedures.

Which rights are affected besides trademarks?
Patent, design, copyright, utility model, plant and semiconductor protection.
See our Legal Expertise Overview.

Should I take civil or criminal action?
Often both: civil injunctions and damages plus criminal prosecution.
Discuss strategy with our English-speaking criminal lawyers in Frankfurt.

Who represents me?
Our team of defence lawyers in Frankfurt – Buchert Jacob Peter – provides nationwide representation in IP and white-collar criminal matters.

Contact Our Criminal Defence Lawyers in Frankfurt and Nationwide

• Dr Caroline Jacob – Specialist Lawyer for Criminal Law
• Frank M. Peter – Specialist Lawyer for Criminal Law
• Cooperation Partner: Frank Wehrheim – Tax Advisor and former Tax Investigator

Our law firm Buchert Jacob Peter has been active in criminal defence for over 25 years in Frankfurt am Main and represents clients across Germany.

📞 Telephone: +49 69 710 33 330
✉️ Email: kanzlei@dr-buchert.de

Further reading:

Tax Evasion Defence |
Criminal Defence in Germany |
White Collar Crime Defence |
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