Photo of Konstantin von Werder

Konstantin von Werder is a counsel in the Intellectual Property practice of Mayer Brown´s Frankfurt office. He focuses on trademark and unfair competition law (UWG). He has extensive experience and expertise as a litigator and advises clients in legal disputes (warning letters, preliminary injunctions, actions on the merits). Konstantin also coordinates the infringement proceedings for his clients abroad. Furthermore, he advises national and international clients on patent, design and copyright law. Moreover, he has particular expertise and experience in drafting complex license and distribution agreements and in providing advice on research and development agreements. His clients include companies in the pharmaceuticals and automotive industry as well as in the hotel, catering and consumer goods sector.

Konstantin's full bio.

On 12 January 2017, the German Federal Court of Justice has handed down its second landmark decision on cheat software within three months. After clarifying the question under which conditions cheat software may constitute copyright infringement in October last year, the Federal Court of Justice has now decided that cheat software can constitute an act of unfair competition, too.

To be able to play online games, e.g. World of Warcraft (WoW) or Diablo III , it is necessary to download a client software and install it on the computer. Achieving progress within the game regularly takes several hours. To save time and to easily achieve the goals of the game some companies develop software, so-called cheat- or buddy-bots, allowing the player to overcome the challenges of the game automatically. Online game developers are not pleased by this fact, which is why they try to prevent the distribution of such cheat bots up front.
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The question of whether a sequence of exercises, such as yoga poses or dance moves, can be copyrighted has occupied the attention of international courts, scholars and copyright offices for some time. In late 2015, the issue received some media attention when yoga guru Bikram Choudhur tried to gain a US copyright in a signature sequence of yoga poses but failed before the Court of Appeals for the Ninth Curcuit. Despite the effort of international copyright conventions, the question of copyrightability essentially remains a matter of national law.
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According to the code of ethics of the International Association of Culinary Professionals, a culinary professional must not knowingly “appropriate […] any recipe or other intellectual property belonging to another without the proper recognition.” And, in addition to the ethical, there are legal issues. While copying culinary creations might not sound like a big deal to millennial food bloggers and vloggers, lawsuits—sometimes with high stakes—have been filed over (mis)appropriated recipes. But whether claims to a signature dish will hold up in court is a different question and will likely depend on the scope of protection of the applicable copyright law(s).
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For many people, Christmas is the most wonderful time of the year: decorating the house, wrapping presents and, last but not least, listening to cheesy Christmas songs, some of which are among the highest-earning songs of all time. When Santa Claus comes to town, however, he might bring some gift-wrapped intellectual property lawsuits with him. The European Patent Office, for example, records many patents that mention Christmas in their title. Most of these patents relate to Christmas trees or their decoration. But patents are not the only kind of intellectual property right that could cool your Christmas cheer.
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On 10 November 2016, the Court of Justice of the European Union (CJEU) ruled that a trademark on the shape of the Rubik’s Cube—supposedly the world’s bestselling toy of all time—is invalid (Case C‑30/15 P). With its judgment, the Court, inter alia, annulled a 2009 decision of the European Union Intellectual Property Office (EUIPO) that initially confirmed registration of the cube as an EU trademark.

The Rubik’s Cube was invented in 1974 by Hungarian architect Ernő Rubik. It was originally named “Magic Cube.” In 1980, the toy was renamed Rubik’s Cube and launched internationally.
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When cobwebs and tombstones start to show up in your neighborhood, probably something wicked is coming your way—except that one night of the year, on Halloween. Even though Halloween involves frightening things—haunted houses, the undead, tricks in response to no treats—it is ultimately about carefree fun. And there’s candy! But if you are in a Halloween-related business, there is a genuinely scary side to the holiday—IP issues that, if ignored, could lead to a wicked lawsuit.
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On 15 September 2016 (C-484/14), the Court of Justice of the European Union (CJEU) ruled that the operator of a shop, hotel or bar that offers free Wi-Fi to the public is not liable for copyright infringements committed by the network’s users. However, the operator may be required to password-protect its network in order to prevent—or cease—these infringements.
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The former governing mayor of Berlin, Klaus Wowereit, a member of the German Social Democratic Party, SPD, has suffered a legal defeat in his year-plus battle with the German publishing house Axel Springer. On 27 September 2016 (VI ZR 310/14), the German Federal Court of Justice ruled that pictures of Wowereit in a Berlin bar on the eve of a vote of no confidence against him could be published in Springer’s daily magazine BILD without the former mayor’s consent.
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On 11 July 2016, the US Court of Appeals for the Federal Circuit issued a unanimous en banc ruling in The Medicines Company v. Hospira Inc. that a sale of manufacturing services by a contract manufacturer to an inventor to create embodiments of a patented product for the inventor does not trigger the on-sale bar of 35 U.S.C. § 102.
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On 31 May 2016, the Regional Court of Berlin (15 O 428/15) ruled that photographs of public domain paintings ‎are, in principle, protected by a copyright-related right in section 72 of the German Copyright Act. The case involved a request to take down several pictures hosted on Wikimedia Commons as public domain images that had been taken by a photographer employed by the Reiss Engelhorn Museum in Mannheim, Germany. Responding to the judgment, the Wikimedia Foundation and Wikimedia Germany wrote that the decision did not pay adequate attention to the long-term damage this judgment represents to accessing public domain works.

The Wikimedia Foundation already announced its plans to appeal the case to the next level of appellate court—the Kammergericht Berlin—and, if necessary, to take it all the way to the Federal Court of Justice.
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