Label "Patent Pending" - Misleading Advertising in Germany

Companies like to highlight their strong innovative capabilities. A patent application is often a sign of their innovation, which is why the term “patent pending” is frequently used in advertising, on packaging, and on the products themselves.

The term “patent pending” is common in English-speaking countries, and products are often labeled “Patent Pending” if they are the subject of a patent application. In Germany, however, the meaning of the term is unclear, at least to consumers. According to a ruling by the Higher Regional Court of Nuremberg, the English term “pending” can be interpreted in different ways by a German consumer. According to one possible interpretation, the result of the patent examination regarding its grantability already exists. Since this is not the case, the labeling is misleading and thus constitutes a violation of the statutory provisions of the German Act Against Unfair Competition.

Foreign companies whose products are the subject of a pending patent application and are intended for sale to consumers should not label or advertise them using the term “Patent Pending.” In the event of a complaint (e.g., by a German competitor), there is not only the threat of a preliminary injunction prohibiting further distribution of the products, but also the risk that products bearing this term will be destroyed and completely removed from the market. Any company wishing to sell its products to German consumers must therefore use labeling that is clearly understandable to them. This may require information in German.

There is also a risk of misleading consumers if the company fails to specify in greater detail where the patent application was filed. If a patent application is advertised, German consumers assume that the application also covers German territory. If this is not the case, it constitutes a further violation of the German Act Against Unfair Competition. Therefore, advertising with a patent application in Germany is generally difficult. While the statement “US patent pending” may be understandable to a business customer in Germany, this may not be the case for a German consumer. Because the consumer, as a legal layperson, does not usually know the principle that patent rights only exist in individual countries, namely where they were registered.

To avoid unpleasant surprises when advertising a patent application, it is always advisable to seek legal advice in advance.