News
975 articles
11 March 2010
Coupling ban for prize draws and goods purchase contrary to EU law
Under current German law, the coupling of prize draws with the purchase of goods pursuant to § 4 Nr. 6 UWG (Act against Unfair Competition) is anticompetitive. The Court of Justice of the European Union (EuGH) has now established in a judgment of 14.01.2010 (Rs. C-304-08) that the provision is incompatible with the Directive on unfair commercial practices of 11.05.2005 (2005/29/EG) and therefore […]
Read more02 February 2010
Indication of international shipping costs required
It has long been common knowledge that the sale of goods via the Internet (online shops, eBay, etc.) or distance selling entails a vast number of information obligations – this also includes the indication of any shipping costs. However, it is often overlooked that this also applies to shipping abroad, as the OLG Hamm established in its judgment of 12.03.2009 […]
Read more15 May 2009
Discounts on price-bound pharmaceuticals impermissible
In the opinion of the Higher Regional Court Karlsruhe (OLG Karlsruhe), the issue of bonus tokens upon the purchase of price-bound pharmaceuticals constitutes a breach of § 78 Arzneimittelgesetz (AMG) and §§ 1, 3 Abs. 1 of the Arzneimittelpreisverordnung (AMPreisV) and is anti-competitive (OLG Karlsruhe, judgment of 12.02.2009 – 4 U 160/07).
Read more15 May 2009
Remuneration obligation for music at Turkish wedding
As is well known, public performance of protected musical works is subject to remuneration. In the case to be decided by the Local Court (AG) Bochum, the rights holder (presumably the Association for Musical Performance and Mechanical Reproduction Rights – GEMA) brought claims for damages against the organiser of a large wedding with 600 guests because protected music was performed by a live band during the celebration. The action […]
Read more30 April 2009
Use of the word mark "DAX" for index-related financial products
Deutsche Börse AG is the proprietor of the word mark "DAX". As such, it objects to the use of its mark in connection with index-related financial products (warrants) for the purpose of disclosing the underlying asset, namely the leading index DAX. The action for an injunction brought against Commerzbank in this regard was dismissed by the Federal Court of Justice (BGH) in agreement with the lower court (judgment of 30.04.2009 – […])
Read more09 April 2009
Disclaimer and amendment reservations in product catalogues permitted
The Federal Court of Justice (BGH) had to decide on 04.02.2009 (VIII ZR 32/08) whether disclaimer and amendment reservations in product catalogues constitute General Terms and Conditions. Like the lower courts, the court rejected this and dismissed the action brought by a consumer protection association on the basis of the Act Against Unfair Terms of Contract (UKlaG).
Read more19 March 2009
Publication of private football films on hartplatzhelden.de prohibited
The Higher Regional Court (OLG) Stuttgart has today, on second instance, decided the judgment of the Regional Court (LG) Stuttgart from 08.05.2008 (41 O 3/08) against the video portal hartplatzhelden.de. According to this, the operators are prohibited from making available (private) recordings of amateur football matches online or otherwise exploiting them. The proceedings were conducted by the Württemberg Football Association, which claims to hold the exclusive exploitation and licensing rights […]
Read more11 March 2009
Liability of eBay Account Holder for Misuse by Third Parties
The Federal Court of Justice (BGH) held in a decision announced on 11.03.2009 (I ZR 114/06 – Halzband) that the holder of an eBay account may be liable for intellectual property infringements (trademark law, copyright, unfair competition law, etc.) committed by third parties if he has provided them with access to the user account or has not adequately secured the access credentials required for this purpose.
Read more07 March 2009
Negative declaratory action against file-sharing cease-and-desist letter permissible
Whoever leans too far out of the window can also fall out – as the Regional Court (LG) Stuttgart demonstrated in its judgment of 11.07.2007 (17 O 243/07). Despite several attempts by the alleged infringer (copyright infringement through file-sharing) to convince the sender of the cease-and-desist letter of his (later also proven) innocence, the latter did not abandon his demands (declaration of abstention, damages, reimbursement of costs). The means [...]
Read more25 February 2009
Effects of the new Packaging Regulation on e-commerce
As of 01.01.2009, the new Packaging Regulation (Verpackungsverordnung, VerpackV) came into force, which brings some important changes for all merchants who put packaging into circulation. Whereas previously there was an option between taking back sales packaging – with appropriate notice – and participation in a nationwide take-back system (Dual System), there is now, in accordance with § 6 Abs. […]
Read more22 February 2009
Statement of telephone number in withdrawal notification provisions is anti-competitive
It is still evident that numerous online merchants, when providing withdrawal notification provisions on eBay or in online shops, state their telephone number in addition to their name, address and possibly a fax number, thereby risking a cease-and-desist letter. The Higher Regional Court of Frankfurt (OLG Frankfurt) already decided in 2004 that this is anti-competitive and can be subject to cease-and-desist action (judgment of 17.06.2004 – […]
Read more12 February 2009
Permissibility of the use of third-party marks as AdWords remains unclear
In January 2009, the Federal Court of Justice (BGH) had to decide on three proceedings concerning Google AdWords, in which the question at issue was the trademark law permissibility of the use of third-party marks or brands as keywords for keyword-related advertising (keyword advertising). Lawyers and advertisers had long awaited a decision and were, however, (initially) disappointed.
Read more12 February 2009
No further photographs of Christian Klar in the press
The Regional Court (LG) Berlin has upheld an interim injunction against B.Z. and Bild, which prohibits the publication of photographs of Christian Klar showing him in front of the Berliner Ensemble.
Read more06 December 2008
Dealing with Cease-and-Desist Notices and Industrial Property Rights
The pre-litigation cease-and-desist notice in the event of infringement of industrial property rights (in particular in competition law and trademark law) is a legitimate instrument in industrial property protection for the preparation of legal proceedings. That the party rightfully receiving such a notice must bear the costs of the attorneys of the sending party is correct, but has increasingly given rise to abusive cease-and-desist practices. The problem also particularly affects the IT sector, because […]
Read more24 November 2008
Sale of admission tickets/tickets by unauthorised dealers
In the general terms and conditions (terms and conditions) of organisers of sporting, musical or other events, it is regularly stated that the resale of acquired admission tickets (tickets) is prohibited. The Federal Court of Justice (BGH) had to decide in proceedings for injunctive relief against bundesligakarten.de, inter alia, whether the purchase of tickets from private individuals and the direct acquisition from the manufacturer under the […]
Read more22 September 2008
Anti-competitive Nature of Advertisements in Internet Business Directories
Recently, complaints have been mounting regarding internet-based business directories that allow searches for companies in a particular industry. However, these companies are not always asked for their consent beforehand, which can lead to legal consequences.
Read more13 August 2008
Permissibility of Trading in Used Software Licences
The issue of trading in 'used' software licences has increasingly occupied German courts in recent times. This relatively new and attractive business model impairs copyright and, not least, the remuneration interests of manufacturers, which is why they regularly endeavour to address the problem through appropriate restrictions in the licence terms. The effectiveness of such agreements depends substantially on […]
Read more22 July 2008
Receipt of the warning notice by the addressee need not be proven
Proof of receipt of a warning notice is not a prerequisite for its effectiveness, since effective legal protection can only be achieved through swift action. The basic possibility of sending it as a notification letter does not change this.
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