Insight · Intellectual Property (EU/DACH)
Injunctions during insolvency: what Germany’s BGH means for rights-holders (31/07/2025)
Summary: Germany’s Federal Court of Justice (BGH) clarified that IP owners may still pursue injunctions even if the defendant is insolvent and operating under self-administration. Practically, an infringer cannot shelter behind “insolvency limbo” to keep trading on your IP. For UK/EU brand owners active in DACH, this keeps speedy enforcement on the table—provided you prepare evidence early and coordinate cross-border counsel.
Why it matters
- Distressed competitors often continue harmful use during restructuring.
- A live route to injunctive relief preserves market position and bargaining leverage.
- Commercial contracts and licensing frameworks should anticipate counterparty distress and escalation paths.
What to do next (practical steps)
- Evidence now: capture dated listings, product shots, purchase records, and web archives (Wayback). Tie each item to territories relevant to any patent/copyright/trade mark rights.
- Cross-border plan: align UK/EU strategies; consider a German filing first if conduct is centred there. Sync with parallel actions (oppositions or EUIPO oppositions).
- Contract triggers: add insolvency-related termination/step-in rights and security for costs in your commercial contracts.
- Commercial options: pair an interim injunction with a structured settlement/licence where appropriate (use case-by-case risk scoring).
Key points (at a glance)
- Insolvency ≠ immunity from injunctions.
- Speed and evidence quality drive outcomes.
- Update template licences and enforcement playbooks for DACH; align with technology law compliance where platforms/hosting are involved.
Sources (open summaries)
- Ferner Alsdorf overview (DE): ferner-alsdorf.de
- Practitioner note (DE): alro-recht.de