Germany: Ongoing Development Of Inspection Proceedings In Theory And Practice

Last Updated: 16 January 2012
Article by Florian Bewer

The claim to inspection in commercial intellectual property law is currently developing on an ongoing basis. However, differences can be seen between the practices of the Regional Courts. Submission of design drawings? Remote access to a server abroad? Enforcement by removal of all servers? Unexpected opportunities arise and new questions are raised.

With the implementation of the enforcement directive on 01.09.2008, a claim to the inspection of an item and submission of documents were implemented in various intellectual property laws (cf. Sections 140c Patents Act, 101a Copyright Act, 24c Utility Model Act, 19a Trade Mark Act, 46a Design Act). A comparable claim already existed in previous German law in Sections 809, 810 German Civil Code. The content and requirements of the claim have continued to be developed further in case law, and this development is not complete to this day. In particular there is still no unanimous opinion about what toleration and cooperation obligations are imposed on the party obliged to grant the inspection, and the ways in which these obligations can be compulsorily enforced. Due to the limited legal remedies against inspection orders, it is also not to be expected that all issues will be clarified in the near future by judgements from the Federal Court of Justice.

The possible content of the former (toleration) order is a field in which a considerable amount of activity can be observed at present. The "classic" decision, which contains little more than the fact that the party obliged to grant the inspection must tolerate the visual inspection of an item by an expert, who may use a camera and dictating machine to this end, has been far exceeded by some Regional Courts. As far as the author is aware, this development peaked in a recent decision by the Munich I Regional Court. On the one hand, this decision set out very far-reaching cooperation and toleration obligations, and on the other hand enforcement measures, hitherto known more in the sphere of theoretical debate, were ordered.

In the decision, which is based on Section 101a Copyright Act and which concerned a suspected infringement of software copyright, the Munich I Regional Court pronounced an obligation to allow remote access to a server located outside the company's premises. The previous case law limited individual inspection measures to specifically-designated commercial premises. In this case, on the one hand there is doubt about the prerequisite of the power of disposition by the party obliged to grant the inspection, and on the other this measure could prove problematic if the server in question is abroad. In these times of worldwide data networks within groups of companies this is a subject that requires closer consideration.

It is doubtful whether such a measure was intended by the legislator on implementation of this enforcement directive, when it was stated, "As a basic principle, the injured party may determine the type of inspection required to obtain the information."

One area that has as yet not been clarified in the courts is the compulsory enforcement of an inspection order.

It is reasonable to assume that the toleration obligations will be enforced by direct compulsion (although the necessity of a court search order and the responsibility for issuing it are not fully clarified) and the implementation of cooperation obligations by application for a fine. The fine procedure is complicated, however, and in practice is not a particularly convenient means by which to achieve the ultimate aim of the proceedings, i.e. to prove a suspected industrial property right infringement.

In its decision, the Munich I Regional Court has now started down the route of an analogous application of Section 883 Code of Civil Procedure, which provides for the enforcement of a claim for restitution of property by removing an item. The application of Section 883 Code of Civil Procedure for enforcement of the inspection claim has been discussed in the literature, but is still disputed. In cases where the party obliged to grant an inspection fails to comply with its cooperation obligations, this entitles the bailiff to remove the item to be inspected (if necessary by force, with the involvement of the police) and to take it to another location to be inspected by the expert. The consequences of such an enforcement measure could be very drastic for the respondent. In this specific case, the bailiff was empowered to seize all the servers and PCs on the company's premises.

How should one proceed when such a decision is issued? Fast legal protection against an inspection order is scarcely achievable, as the available reaction time is only a few hours. In this short period it is hardly possible to apply to the court for a suspension of the inspection, let alone for a decision to be made. However, the applicant is also walking on thin ice in the case of enforcement by this route. Claims for damages, should the inspection be found to be unjustified because no legal infringement is present or threatened, are irrespective of fault and can soon add up to high amounts. This is all the more the case where the inspection has a substantial adverse effect on the business of the respondent.

Inspection proceedings are an effective method of clarifying the actual circumstances of a suspected intellectual property right infringement. The lower courts have to date allowed drastic measures to obtain the aim of securing evidence. The permissible extent of such decisions should surely be examined by the supreme court. We await developments with bated breath!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.