How much is trademark litigation in Germany

by Chris

I often get the question, how much trademark litigation in Germany is likely to cost. This post is meant to give a basic overview. Figures may vary widely depending on the individual case.

Let’s take a closer look at the way legal services in Germany are billed. The traditional way is – not so much a surprise – based on a law, regulating lawyers’ fees. At the center of the fee calculation is the amount involved in the case, determining how much a fee unit in this case will be (the law provides a table). Depending on the kind of work (preparing the case, litigation etc) a fraction or multiple of a fee unit is due. This billing method used to be legally binding but had come under criticism as it does not reflect the actual effort and complexity an individual case may require. But things have changed over the last couple of years and lawyers are now mainly free to agree a fee on their own.

As a rule of thumb the amount involved in a trademark case can be expected to be around 50.000 EUR. Based on this, the lawyer’s fee for a case involving litigation is ca. 2635 EUR (+ VAT). This amount comprises of 1359 EUR for preparing the case and 1255 EUR for litigation plus ca 20 EUR flat for postage & phone. Court charges are 1368 EUR (not subject to VAT). Pursuant to the German code of civil procedure, the cost are split in relation to the outcome of the case. This means, the losing party is carrying not only their own lawyers’ fee but also the other party’s lawyer fee plus court charges. In our example the losing party will have to pay legal cost totaling 6638 EUR (any fees in excess of the officially outlined fees are not recoverable).

In the last couple of years hourly billing has more and more evolved as an alternative. Hourly rates vary widely. For IP specialists a rough estimate is at least 200 to 250 EUR per hour. One has to bear in mind that it is against the law for a German lawyer charge less than the legal fee for litigation. As IP matters tend to be often complex, require in depth knowledge and carry a significant liability risk, most IP specialists tend to bill by the hour, so fees often exceed the the above mentioned figures.

5 comments

1 Andrey { 09.03.10 at 21:32 }

I like the part that “it is against the law for a German lawyer charge less than the legal fee for litigation”. Seems German lawyers could make a healthy living.

Andrey, http://www.pinskylaw.ca

2 admin { 09.09.10 at 23:31 }

Hello Andrey,
Sounds good, doesn’t it . Some German lawyers certainly do make a healthy living. But like in all industires, there is quite a variation in terms of income. So, it is for the litigation part only. And, according to the law, these fees are value based (e.g. the value of the claim). Difficulty is considered as well but to a far lesser extent. Insofar one can be lucky, litigating an easy standard case, but high value. Bad luck if it is complicated and time consuming, (and maybe even low value).

The funny thing is that German lawyers have been trying to get rid of this value based billing system (which once upon a time was all binding also for non litigation, and hourly billing was not allowed at all) over the last two decades or so. Many still use the legal fee table as a guideline. Others think it is a ridiculous system, totally neglecting time spent. However, it seems, for many clients a value based fee is a comfortable thing, since it is some sort of flat fee, which can be more or less determined upfront.

Interestingly, there seems to be a discussion going on in the US and UK, questioning the future of hourly billing (unfortunately don’t remember the blogs) and pointing towards value based billing as one solution. Once again, Germany seems to be a bit behind….. busy catching up with the past trend in the US…..

3 abhishek { 11.17.10 at 07:49 }

Thanks for giving information on germany trademark. See Indian trademark trademarkagentinindia.com

4 Gordon { 11.27.10 at 08:40 }

Hi

Thanks for a very informative article. I do not have a legal background but personally made a CTM application (as an individual). With two oppositions lodged, and both seeking to have “the applicant bear the cost”, is this considered litigation? At this stage I’m growing concerned that I could be faced with a huge cost (i.e. more than €10k).

5 catherin { 12.11.10 at 05:40 }

I think you have a thorough understanding in this matter. You describe in detail all here.

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