Sale of fake cigars obliges to pay compensation
Fake cigars, an important topic. Have you ever (knowingly or unknowingly) bought or sold counterfeit Cuban cigars in Germany? This can be expensive for the seller. Under German law, the buyer can demand compensation from the seller. This means that the seller must pay the buyer the difference between the selling price and the actual price or obtain and pay for the original goods.
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Table of contents
I spoke to lawyer Dariush Toussi. The following statement is general in nature and each individual case should be evaluated separately.
Fake cigars for sale: the basics
Insofar as any criminal liability is concerned, Section 143 MarkenG applies to Germany. According to this, anyone who unlawfully places counterfeit goods on the market in the course of trade can be prosecuted. The penalty is imprisonment for up to 3 years or a fine. The seller runs the risk of receiving a costly warning from the buyer. Even damages can be claimed. You can read more about this below.
Cohiba cigars are often counterfeited. Here is an original, the Cohiba Siglo De Oro Year Of The Rabbit 2023, which is equipped with NFC technology to detect counterfeits. Below a short video.
Practical example
The seller of fake cigars (plagiarism), which he advertises as original, is taking great risks in terms of sales law, regardless of whether he was aware of the plagiarism or not.
If the seller, whether private or commercial, advertises a product as being from a certain manufacturer or a certain brand and the contract is concluded as a result, the seller must also be liable for this warranted characteristic regardless of fault. On the one hand, this means that the buyer has a claim to fulfillment of the contract, i.e. the seller still owes the buyer the original goods. If he does not fulfill this obligation, the buyer can also withdraw from the contract and demand his money back step by step in exchange for the return of the defective goods.
In the event that the seller acted culpably when advertising the goods as original, the buyer is also entitled to compensation.
In 2012, the Federal Court of Justice clarified in a case concerning a Vertu cell phone (original purchase price: EUR 24,000 - purchase price in the case: EUR 768) that the claim for damages could be justified prima facie because the seller gave the impression of offering an original product (BGH ruling of March 28, 2012 - case no. VIII ZR 244/10). The claim for damages amounted to EUR 23,218, i.e. the difference between the purchase price paid and the price of the original product.
The assessment under sales law is independent of the trademark law issue. In the worst case, both are true, so that legal and court fees plus the costs of fulfilling the contract are incurred under both trademark and sales law.
Security against counterfeiting: NFC technology
This is a short and informative video about what NFC technology is and what you can do with it.
Resources on the topic
Vertu cell phones: BGH judgment of March 28, 2012 - Ref. VIII ZR 244/10
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