Introduction

In the field of intellectual property and information technology, the calculation of damages is an important aspect when it comes to infringement. In Germany, there is a special concept in IT/IP law known as “triple damage calculation”. This concept allows the rights holder to claim damages for an infringement of his rights, based on three different calculation methods. This article explains what triple damage calculation is in IT/IP law in Germany and how it is applied.

What is the triple damage calculation?

The triple damage calculation is a legal instrument that enables the right holder to claim damages in case of an infringement of his rights. In doing so, damages can be calculated in one of three ways:

1. Damage actually suffered: This involves calculating the damage actually suffered by the rights holder as a result of the infringement.
2. License analogy: In this method, damages are calculated on the basis of what the infringer would have had to pay if he had acquired a license to use the right.
3. Surrender of the infringer’s profit: Here, damages are calculated on the basis of the profit that the infringer has made from the infringement.

It is important to note that the rights holder can choose one of the three methods, but cannot combine all three.

Relevance in IT/IP law

In IT/IP law, protective rights such as copyrights, trademark rights, patent rights and design patents are of central importance. If a party infringes these rights, the rights holder may claim damages. The treble damages calculation comes into play to ensure that damages are appropriate and effectively protect the owner’s rights.

Copyright

In the area of copyright law, the triple damage calculation may apply, for example, to the unauthorized use of software, music, films or literary works.

Trademarks

In trademark law, the triple damage calculation can be relevant if a trademark is used without the consent of the rights holder, which can lead to a likelihood of confusion or damage to reputation.

Patent law

In patent law, treble damages calculation can be applied in case of unauthorized use of a patented technology or invention.

Legal basis

The triple damage calculation in IT/IP law in Germany is based on various legal regulations. In the Copyright Act (UrhG), claims for damages are regulated in §§ 97 ff. In trademark law, corresponding regulations can be found in the Trademark Act (MarkenG), in particular in Section 14. In patent law, the corresponding regulations can be found in the Patent Act (PatG).

Example: Application of the triple damage calculation

Let’s assume that a software developer has created a software and holds the copyright to it. A company uses this software without a license. The software developer can now claim damages and has the choice between the three calculation methods.

1. Actual damage suffered: The developer could prove what costs it has incurred as a result of the illegal use, e.g. lost royalties.
2. License analogy: The developer could calculate damages on the basis of what the company would have had to pay if it had purchased a license to use the software.
3. Surrender of the infringer’s profits: If the company has made profits from the use of the software, the developer could demand that these profits be surrendered as damages.

Challenges and criticism

While the triple damage calculation provides flexibility, it can also lead to challenges. It can be difficult to accurately quantify the actual harm suffered or the infringer’s gain. In addition, the choice of calculation method may lead to strategic behavior, where the right holder chooses the method that promises the highest damages.

Conclusion

The triple damage calculation in IT/IP law in Germany is an important instrument that enables rights holders to claim damages for infringements of their rights. By choosing between three calculation methods, rights holders can claim damages in a way that best suits their specific circumstances. However, it is important to consider the challenges and criticisms associated with this method.