Many IP and unfair counterfeiting disputes are sparked by product presentations by foreign companies on fairs in Germany. Up to now it has been well-established practice among German first and second instance courts to regard such presentations as actionable product offers at least in such cases, where the presenting company has not clarified by a sign or the like that the product is not available in Germany.

At least for trade mark and unfair competition law, this practice is about to change, as the Federal Court of Justice (third and highest instance in civil law matters) has found in a recently published judgment that a fair presentation as such does not allow to infer a likelihood of infringement, if the question of infringement depends on the views of the relevant public (i.e. trade mark law and unfair competition law; judgment of 24/10/2014 – I ZR 133/13 – Keksstangen). With this reasoning, the Federal Court of Justices takes account of the fact that a lot of fairs in Germany are frequented by foreign companies for their international character, and not because of an intention to enter the German market. Additionally, the court mentions the situation where a presented product is just prototype or a design study, for which the company lacks any marketing plans.

So the conclusion for practitioners is that a proven fair presentation in Germany by a foreign company does not necessarily provide a sufficient cause of action. Rather, it should be investigated if the presentation is associated with particular marketing intentions specifically in Germany.