Every hour counts in the case of acute trademark infringements. Counterfeit products flood the market, evidence threatens to disappear and the economic damage increases. Anyone who hesitates here loses valuable time and strategic advantages. For trademark owners, however, there is an extremely effective instrument for the judicial protection of urgent rights: the temporary injunction in combination with a Sequestration.

Just last week, we had over 5,000 pairs of shoes seized for a client, which are now safely locked away in an official warehouse and will probably miss the winter business.

This article explains why this measure is so effective, what the exact process looks like and what legal hurdles need to be overcome.

What is sequestration in trademark law?

Sequestration (Latin for "safekeeping") is the judicial seizure of infringing goods and related evidence. A bailiff physically secures the products in question so that the infringer cannot sell, hide or destroy them.

In contrast to the Confiscationwhich is usually carried out by the authorities (police, customs) in the context of criminal law, sequestration is a purely civil law measure. It is applied for directly by the trademark owner as part of an application for a temporary injunction.

The legal basis: The right to seize and later destroy infringing products often arises in substantive law from trademark or design law (e.g. Section 18 MarkenG). The procedural implementation as an urgent measure is based on the Code of Civil Procedure (ZPO), in particular Sections 935 et seq. ZPO (preliminary injunction) and Section 938 (2) ZPO (sequestration as a specific order).

The decisive advantage: The surprise effect (no warning)

Normally, a legal dispute is preceded by a warning letter in trademark law. Sequestration is different and that is precisely what makes it so effective: it is without prior warning requested.

The reason for this is urgency and the risk of evidence being destroyed (risk of concealment). If the infringer were warned in advance, he could remove the goods immediately. Therefore, the court can issue the preliminary injunction, including the sequestration order inaudita altera parte - so without hearing the other party - issued.

The bailiff then arrives at the infringer's door completely unannounced.

Typical use cases: When does sequestration make sense?

Sequestration is not suitable for every minor trademark infringement, but for acute and serious cases. Typical scenarios are

• Trade fair appearances: A competitor exhibits brazen counterfeits at an important industry trade fair. Sequestration can paralyze the trade fair stand and secure the exhibits.
• Counterfeits found: A brand owner discovers a warehouse or store full of counterfeit goods (product piracy).
• Seasonal goods: If infringing products (e.g. fashion, Christmas items) only have a short sales margin, sequestration prevents the infringer's main sales.
• Flying traders: In the case of infringers without a fixed place of business or with unclear structures, sequestration serves to immediately secure the tangible goods

The process: In 5 steps to securing

How does sequestration work in practice? The process is designed for maximum speed.

1. credibility (the most important step) The trademark owner cannot conduct a lengthy hearing of evidence in summary proceedings. He must "substantiate" his claims. This means that he must prove to the court (usually by means of affidavits, test purchases, photos or expert reports) Predominantly probable to explain:

• That he is the owner of the trademark.
• That there is a clear violation of the law.
• That the matter is urgent (urgency).
• That there is a risk that the goods will disappear without being secured.

2. application to the court The trademark owner's lawyer files an application for a preliminary injunction (with sequestration order) with the competent regional court (usually at the infringer's registered office or at the place of infringement).

3. judicial review and decision The court examines the application immediately, often within 24 to 48 hours. If the court considers the requirements to be credible, it issues the order without an oral hearing and without informing the opponent.

4. enforcement by the bailiff The trademark owner immediately commissions a bailiff with the court order. The bailiff (often accompanied by the trademark owner's lawyer and possibly the police as an enforcement agent) travels to the infringer and takes the goods specified in the order into custody (e.g. storage in a forwarding agency).

5. objection of the opponent (optional) The defendant (infringer) only learns of the proceedings through the bailiff. He can lodge an objection against the order. There is then an oral hearing in which the measure is reviewed. However, the goods remain seized (at least) until then.

Risks and liability: The "boomerang" § 945 ZPO

Despite its effectiveness, sequestration is a sharp sword and carries risks. If it subsequently transpires (e.g. in opposition proceedings or in the main proceedings) that the application unjustified from the outset the applicant is liable for the entire loss incurred by the opponent as a result of the enforcement (Section 945 ZPO).

These include, for example, loss of sales, storage costs or reputational damage. Careful preservation of evidence in advance and a realistic assessment of the legal situation are therefore essential.

Differentiation: sequestration vs. confiscation vs. border confiscation

The terms are often confused, but refer to different procedures:

• Sequestration (civil law): The judicial custody in summary proceedings described here, applied for by the trademark owner.
• Confiscation (criminal law): The seizure of items by the public prosecutor's office or police as part of a criminal investigation (e.g. due to commercial fraud or brand piracy).
• Border seizure (customs law): A separate procedure in which customs detain goods at the EU's external border (e.g. at the port or airport). The trademark owner must actively request this from customs (EU-wide Regulation (EU) No. 608/2013). This is a preventive instrument, while sequestration takes effect when the goods are already in the country.

Conclusion: Maximum pressure with minimum warning time

The preliminary injunction with sequestration is the most effective instrument for the immediate protection of trademark rights in Germany. It combines the surprise effect with tangible consequences for the infringer. By quickly securing evidence and preventing further sales, it creates an excellent negotiating position.

For trademark owners, it is an indispensable lever for quickly stopping acute infringements and reaching a fair and speedy settlement.

FAQ on sequestration in trademark law

What is sequestration in trademark law? Sequestration is the court-ordered seizure (safekeeping) of trademark-infringing products by a bailiff. It serves to preserve evidence and prevents further sale.

Why is no warning necessary in the event of sequestration? In order to maintain the surprise effect and avoid the "risk of concealment". If the infringer were warned in advance, he could destroy or remove the goods before the bailiff arrives.

What do I have to do to apply for sequestration? You must apply to the court for a temporary injunction and "substantiate" your claims. This usually requires test purchases, photos and affidavits that prove a clear violation of the law and urgency.

How fast does sequestration work? Very quickly. A court can often issue the order within 24 to 48 hours of the application being made. Enforcement by the bailiff then takes place immediately.

What is the difference between sequestration and border seizure? Sequestration (civil law) stops goods that are within Germany (e.g. in a warehouse, in a store, at a trade fair). Border confiscation (customs law) stops counterfeit goods at the EU external border (e.g. in port) before it is even released for free circulation.

What are the risks of sequestration? If the application was unjustified from the outset (e.g. because there was no infringement of rights at all), the applicant is liable under Section 945 ZPO for the full loss incurred by the opponent as a result of the seizure.