Sales from Germany
Export and direct sales: contractual basis, delivery terms, liability and warranty.
Germany · USA
US market entry
for German companies
A German company expanding into the US market needs to decide early on how its business activities there are to be structured legally. We advise companies on the legal groundwork for their market entry and on the design of cross-border structures.
Overview
The structure is decided before business begins.
Market entry is more than forming a company. Formation is a single step; market entry is the overarching decision on how the US activities are set up as a whole – through partners, through contracts, through an entity of your own, or through a combination of these.
Reversing that order and forming a company first tends to produce a structure that does not fit the actual business. We therefore begin by clarifying the starting position and support establishing a US company once that is the right route.
Tax advice is provided by tax advisors and Certified Public Accountants (CPAs). Where tax questions shape the structuring decision, we bring them in.
Routes to market
The right route into the US market.
Which issues need to be resolved depends on the route chosen. We advise on the following areas and state clearly where admission in the United States or a different professional qualification is required.
Cooperation with US partners
Distribution, sales agency and cooperation agreements – and how they are terminated.
US subsidiary
A separate legal entity on the ground, aligned with the German corporate structure.
Contract structures
The set of agreements that carries the business – drafted for cross-border use.
Liability
Liability shielding, indemnities and insurability in US business.
Trademark protection
Protecting trademarks and brand names in the target market before third parties occupy them.
Data protection and IT
Data transfers, software agreements and IT law requirements in transatlantic business.
Employing staff
The German side of secondments and employment; local employment law requirements through US counsel.
Structuring decision
A US subsidiary, or doing business from Germany?
Neither option is better as a matter of principle. They differ in liability, effort, proximity to the market and flexibility – and the answer depends on what is actually meant to happen in the United States. We examine the legal questions that precede this decision.
- Scope and duration of the planned activity
- Allocation of liability and shielding
- Contracting parties and where contracts are concluded
- Staff, premises and places of business
- Protection of trademarks, software and know-how
- Ongoing obligations and cost of the structure
The bigger picture
Considering the legal issues together, from the outset.
A market entry rarely fails because of a single clause. It fails because structure, contracts and intellectual property rights are decided one after the other rather than together – the company is in place before it is clear who holds the trademark, and the distribution agreement is signed before the question of liability has been settled.
We bring these levels together from the start:
- Corporate law – structure, shareholdings and resolutions on the German side
- Contract law – distribution, cooperation, supply and services
- Trademark & Competition Law – brand protection and advertising in the target market
- IT & Social Media – software, data and transfers to the United States
This is the real advantage of working with advisors who know both sides: you do not have to pull the threads together yourself.
Approach
How we work.
01
Understanding the business model
What is to be sold, provided or built in the United States – and over what time horizon.
02
Identifying the legal requirements
The questions the planned route raises: contracts, liability, intellectual property, staff.
03
Developing the structure
A structure that fits the business and integrates with the existing German setup.
04
Bringing in the required US advisors
Licensed US attorneys for questions of state law, tax advisors and CPAs for tax matters.
05
Contracts and implementation
Drafting, negotiation and support through to the operational structure on the ground.
Working together
Who advises on what.
US law is, to a large extent, the law of the individual states. We advise on the German side of the market entry and on the design of the cross-border relationship as a whole. Where a question calls for a binding assessment under the law of a particular US state, it is handled by or together with attorneys licensed in that state, and we coordinate that cooperation.
- German law and the German side of the structure: Hannekum & Partner
- The law of a US state: by or together with attorneys licensed there
- Taxes and duties: tax advisors and CPAs
- Preparation, coordination and bringing the results together: Hannekum & Partner
Questions and answers
Frequently asked questions on entering the US market
How can a German company enter the US market?
There are several routes: direct sales from Germany, sales through a US partner or distributor, cooperation with an American company, or a US subsidiary of its own. Each route comes with a different legal structure, a different allocation of liability and different contractual needs. The decision should therefore be made before the first contract, not after it.
Do I need a US subsidiary?
Not in every case. A separate company typically becomes relevant where staff are to be employed locally on a permanent basis, contracts are to be concluded in the company’s own name, or investments are to be made. For an entry through partners or pure export, it is often not required. What matters is the scope and duration of the planned activity.
When does a US company make sense?
We do not anticipate the commercial assessment. From a legal perspective, a separate company is indicated where liability is to be shielded, staff are to be hired, contracts are to be concluded locally or capital is to be raised. The ongoing effort and the additional obligations weigh against it. Tax aspects belong in the decision and are assessed by tax advisors and CPAs.
What needs to be considered legally when selling into the United States?
Above all, the contractual basis: choice of law, jurisdiction, liability and warranty, and the question of whether German general terms and conditions hold up in US business at all. In addition, there are product and labeling requirements as well as the protection of trademarks and software in the target market. Where state-law requirements are concerned, we bring in licensed US attorneys.
Which contracts do I need for entering the US market?
Typically distribution agreements, cooperation and service agreements, non-disclosure agreements, and license agreements for trademarks and software. Where a separate company is added, the corporate documentation and the agreements between the German parent and the US company come on top.
Your contacts
Advice on the way into the US market.
J.-Alexander Bürger
Rechtsanwalt · Attorney at Law (Florida)
Juris Doctor (Miami), admitted in Germany and as an Attorney at Law in the US state of Florida. He advises on structuring decisions, corporate law questions and the cooperation with advisors in the United States.
Darja Hannekum, LL.M. (University of Miami)
Rechtsanwältin & German civil-law notary (Notarin)
Certified Specialist Lawyer for IT Law (Fachanwältin für IT-Recht)
Master of International Law (Miami). She is responsible for the contractual and digital side of market entry: trademark protection, license and software agreements, and IT & Social Media.
More on Germany · USA
Further cross-border topics.
Establishing a business in the USA
Structure, state and documentation of a planned US company.
German-US contracts
Choice of law, jurisdiction, liability and IP in cross-border agreements.
German-US business relationships
Distribution, cooperation and supply relationships across the Atlantic.
Germany · USA
Thinking across borders.
Acting with legal clarity.
Tell us about your matter between Germany and the United States. We will assess how we can support you and which further advisors should be involved where appropriate.