License analogy

The License analogy is a concept in German tort law and refers to the method of Calculation of claims for damages in connection with the infringement of intellectual property rightsin particular copyrights and trademark rights. The basic idea of the license analogy is to calculate the damage caused by the unauthorized use of intellectual property by taking into account the costs that would normally be incurred for the granting of a license for the lawful use of the protected work or trademark.

Main features of the license analogy:

  1. Damage calculation: In the event of an infringement of intellectual property rights, the infringer must in many cases Compensation for damages to pay. The license analogy is a method for calculating this damage.
  2. Hypothetical license fee: Instead of precisely quantifying the actual damages incurred, a hypothetical license fee is assumed. This fee reflects what would reasonably have been paid for the lawful use of the intellectual property.
  3. Analogy to licensing: The assumption is that the infringer would have legally obtained the right to use the protected work or trademark if he had acquired a license. The amount of the hypothetical license fee is based on the usual fees paid for lawful licensing in similar situations.
  4. Standard market conditions: When applying the license analogy, market practices are taken into account to ensure that the hypothetical license fee is calculated under normal, competitive conditions.

The license analogy is particularly relevant when it is difficult to determine the exact financial damage caused by the infringement. This method provides a practical way of estimating the lost profits or the value of the unlawful use. The exact application of the license analogy may vary depending on the specific circumstances and applicable law.

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