Nike-related criminal complaints may concern the alleged sale of footwear that infringes protected designs.<\/p>\n
A criminal complaint does not itself establish an infringement or prove the accused person\u2019s guilt.<\/p>\n
German authorities must examine the specific product, the protected design, the overall visual impression and the retailer\u2019s state of mind.<\/p>\n
Retailers should generally obtain legal advice and review the investigation file before making a substantive statement.<\/p>\n
Background: Nike complaints concerning footwear in Berlin<\/p>\n
The sale of allegedly imitated footwear can lead to civil and criminal proceedings in Germany. This is particularly relevant where a rights holder claims that shoes offered in a retail business reproduce the appearance of protected designs.<\/p>\n
An anonymised Berlin investigation concerned footwear offered in a shop at the Dong Xuan Center. A person acting on behalf of Nike visited the premises, photographed shoes and purchased a pair for evidentiary purposes. The shoes were subsequently provided to a Nike representative for further assessment.<\/p>\n
Nike alleged that the shoes reproduced characteristic features of protected Nike designs and created the same overall impression as the registered designs.<\/p>\n
The case illustrates an important legal principle: a complaint, test purchase or photograph may establish an initial suspicion, but none of these elements automatically proves a criminal design infringement.<\/p>\n
German design law protects the appearance of a product. This may include its lines, contours, colours, shape, surface structure and other visual features. Footwear can therefore be protected as a product design independently of any word mark or logo.<\/p>\n
Design protection must be distinguished from trademark protection. Trademark law generally protects signs that indicate commercial origin, such as names and logos. Design law focuses on the external appearance of the product itself.<\/p>\n
Under Section 65 of the German Design Act, the unauthorised use of a Community design in violation of Article 19(1) of Regulation (EC) No 6\/2002 may constitute a criminal offence. The basic penalty is imprisonment of up to three years or a fine. Where the conduct is committed on a commercial basis, Section 51(2) DesignG may apply and provide for a higher penalty.<\/p>\n
offering a product for sale;<\/p>\n
placing it on the market;<\/p>\n
importing or exporting it; and<\/p>\n
possessing it for one of those purposes.<\/p>\n
The rules may therefore apply even where the retailer did not manufacture the shoes. The alleged distribution or offering of infringing products may itself be legally relevant.<\/p>\n
How is the overall impression assessed?<\/p>\n
The decisive question is generally whether the allegedly infringing product creates a different overall impression on the informed user compared with the protected design.<\/p>\n
The assessment should consider:<\/p>\n
the registered design;<\/p>\n
the specific product being challenged;<\/p>\n
the features that shape the overall impression;<\/p>\n
the similarities and differences between the products; and<\/p>\n
the designer\u2019s degree of creative freedom.<\/p>\n
A product is not necessarily infringing merely because it resembles a famous shoe model. The relevant comparison must be made against the specific registered design, not against a brand\u2019s general market appearance.<\/p>\n
The German Federal Court of Justice has emphasised that the overall impression must be assessed from the perspective of the informed user. The protection afforded by a registered design also depends on the degree of freedom available to the designer when creating the design.<\/p>\n
In design infringement cases, general statements such as \u201ccopy\u201d, \u201cfake\u201d or \u201cimitation\u201d do not replace a legal and technical comparison. The relevant product must be identified and compared with the protected design in a structured manner.<\/p>\n
Was the product photographed or purchased during the relevant visit?<\/p>\n
Can the product be linked reliably to the retailer?<\/p>\n
Has the product been preserved and documented?<\/p>\n
Are the relevant registered designs clearly identified?<\/p>\n
Were the allegedly copied features actually protected?<\/p>\n
Do the similarities affect the overall impression?<\/p>\n
Are the differences merely colour variations or do they alter the appearance of the product?<\/p>\n
In the anonymised Berlin investigation, a later police inspection reportedly found predominantly no-name footwear. Only a small and isolated proportion of the products was considered visually similar to Nike or Adidas sports shoes. The final police note stated that these products represented only a minor part of the stock on display.<\/p>\n
Those findings do not automatically disprove an earlier allegation. They may, however, be relevant when assessing the strength of the evidence and the likelihood that further infringing products will be found.<\/p>\n
No. The existence of a registered business or the sale of shoes does not automatically prove commercial-scale criminal conduct.<\/p>\n
For the aggravated offence to apply, the prosecution must establish facts indicating that repeated infringements were intended to create a continuing source of income of some significance. Relevant evidence may include:<\/p>\n
purchase invoices;<\/p>\n
delivery notes;<\/p>\n
order records;<\/p>\n
supplier information;<\/p>\n
stock levels;<\/p>\n
sales data; and<\/p>\n
evidence of the retailer\u2019s knowledge of the protected rights.<\/p>\n
A business registration may show that a commercial shoe trade existed. It does not, by itself, prove that the retailer knowingly sold infringing goods or intended to generate income through repeated design infringements.<\/p>\n
A criminal complaint does not automatically justify a search of a business or private premises. German investigative authorities must have concrete facts supporting a suspicion of a criminal offence and a reasonable expectation that relevant evidence will be found.<\/p>\n
The measure must also comply with the principle of proportionality. Less intrusive investigative measures may be required where the evidence is limited or ambiguous.<\/p>\n
In the anonymised case, the prosecution initially considered a search disproportionate because only isolated shoes resembling Nike products had been identified. The accused person was instead to be given an opportunity to respond to the allegations.<\/p>\n
This demonstrates that the authorities must balance the interests of criminal enforcement against the impact of a search on a retail business, its premises and its ongoing operations.<\/p>\n
Retailers who become aware of a Nike-related criminal complaint should obtain legal advice before making substantive statements. An accused person is generally entitled to remain silent, and the first step should usually be to request access to the investigation file.<\/p>\n
The following issues should be reviewed:<\/p>\n
the exact registered designs relied upon;<\/p>\n
the validity and scope of those designs;<\/p>\n
the photographs and product comparisons;<\/p>\n
the identity and condition of any purchased products;<\/p>\n
the chain of custody of the evidence;<\/p>\n
supplier and purchase documentation;<\/p>\n
the retailer\u2019s knowledge and intent; and<\/p>\n
the factual basis for any allegation of commercial-scale conduct.<\/p>\n
Retailers should also preserve potentially relevant documents, including invoices, delivery notes, order records and correspondence with suppliers. They should avoid destroying, altering or concealing goods or documents that may be relevant to the investigation.<\/p>\n
A design dispute may involve both civil enforcement and criminal proceedings. In civil proceedings, a rights holder may seek removal of the infringement, an injunction and damages. Section 42 DesignG provides for claims for removal, injunctive relief and compensation in appropriate circumstances.<\/p>\n
Criminal proceedings serve a different purpose. They examine whether an individual personally committed a criminal offence and whether the necessary mental element, particularly intent, can be proven.<\/p>\n
The existence of a civil cease-and-desist demand does not automatically establish criminal liability. Conversely, the absence of a criminal conviction does not necessarily prevent a rights holder from pursuing civil remedies.<\/p>\n
Nike-related complaints concerning footwear at Berlin\u2019s Dong Xuan Center demonstrate the importance of design law for retailers and distributors. A test purchase, photographs and visual similarities may support an initial investigation. They do not, however, automatically establish a criminal offence.<\/p>\n
The prosecution must address the specific protected design, the specific product, the overall impression, the retailer\u2019s knowledge and intent and, where alleged, the requirements for commercial-scale conduct.<\/p>\n
A criminal complaint is not a finding of guilt. Retailers affected by such allegations should obtain early legal advice, request access to the investigation file and arrange a product-specific assessment before making substantive statements or signing any undertakings.<\/p>\n
Yes. If Nike considers that a protected design has been used without authorisation, it may report the matter to the competent authorities. The authorities must then independently assess whether the legal and evidentiary requirements for criminal proceedings are satisfied.<\/p>\n
Not necessarily. The assessment depends on the specific registered design, the specific product and the overall impression created on the informed user. General resemblance alone is not sufficient.<\/p>\n
A retailer who is treated as an accused person should obtain legal advice before responding. The right to remain silent and the right to consult a defence lawyer are central safeguards in German criminal proceedings.<\/p>\n
The retailer should seek legal advice, request access to the investigation file, preserve relevant business documents and avoid making substantive statements until the evidence has been reviewed.<\/p>\n
Yes. A rights holder may pursue civil remedies such as an injunction or damages while the public authorities separately assess possible criminal liability.<\/p>\n
This article is based on an anonymised investigation file. It does not identify any person other than Nike and does not express a conclusion regarding the guilt or innocence of any individual. It provides general information and does not constitute legal advice.<\/p>\n
J\u00fcdemann Rechtsanw\u00e4lte advises and represents retailers and businesses facing criminal allegations relating to alleged trademark and design infringements.<\/strong> Attorney Kai J\u00fcdemann is a specialist criminal defence lawyer under German law<\/strong> and also has experience in the field of intellectual property law.<\/p>\n<\/div>\n The firm assists clients in particular with reviewing criminal complaints, requesting and analysing access to the investigation file, developing a defence strategy and communicating with the police and public prosecution authorities. The objective is to protect the client\u2019s rights at an early stage and to develop a focused and effective response to the allegations.<\/p>\n<\/div>\n J\u00fcdemann Rechtsanw\u00e4lte will be pleased to advise and represent you throughout Germany<\/strong> if you have received a police summons, are affected by a search measure or have otherwise been contacted in connection with alleged trademark or design infringement.<\/p>\n<\/div>\n Legal advice and representation are provided on an individual basis subject to the conclusion of a mandate agreement. This information does not constitute individual legal advice.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":" Nike Design Infringement Complaints at Berlin\u2019s Dong Xuan Center: What Retailers Should Know Key takeaways Nike-related criminal complaints may concern the alleged sale of footwear that infringes protected designs. A criminal complaint does not itself establish an infringement or prove the accused person\u2019s guilt. German authorities must examine the specific product, the protected design, the […]<\/p>\n","protected":false},"author":3,"featured_media":17189,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[2215],"tags":[],"class_list":["post-17191","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-design"],"yoast_head":"\n