“Ignorance is no defense against punishment” is a popular saying. And it also applies to the infringement of Patents, Trademarks and Designs. Anyone who infringes an industrial property right is liable for the damage resulting from this infringement, even if they were unaware of the IP Right.
A company can therefore not shirk its responsibility by arguing that it was unaware of the IP Right and that the infringement was therefore not its fault. Rather, the person who brings a product or service onto the market must make the necessary clarifications in order to avoid infringements of property rights. There is a legal obligation to inform oneself about third-party property rights.
The searches and property right checks that are carried out before entering the market are known under the technical term “Freedom to operate” or “FTO” for short. This involves identifying all potentially relevant IP Rights and then assessing on a case-by-case basis whether your own product conflicts with the IP Right of the third party.
If there is a collision, the product or Trademarks must be changed or other precautions taken so that there is no longer an infringement. Ultimately, the “freedom to operate” should exist.
How is an FTO clarification carried out and what level of certainty does it provide?
More on this in grips 2015/4.