News
975 articles
23 June 2008
No isolated reimbursement of cease-and-desist letter costs in case of failure
After an unsuccessful cease-and-desist letter, the sender cannot claim isolated reimbursement of the costs from the recipient without simultaneously bringing an action for injunctive relief.
Read more14 May 2008
Bonus system for prescription-only medicinal products not permitted
The subject matter of the dispute was a pharmacy's discount system which provided for the grant of a bonus upon purchase of prescription-only medications. Upon presentation of a completed bonus card, the pharmacy granted a price reduction of EUR 10.00 upon purchase of non-prescription medicinal products or reimbursed the practice fee paid by the customer.
Read more08 May 2008
Dispensability of a warning notice in cases of established futility
The out-of-court warning notice is merely an obligation with regard to cost recovery, but not a prerequisite for admissibility of court proceedings. The warning notice may even be dispensable if its futility is foreseeable or if it is unreasonable for other reasons. However, a deliberate or intentional breach of competition law alone is not sufficient for this purpose without the addition of further circumstances.
Read more07 May 2008
"Free trial" must be free of charge
A provider advertising "Try for free now", "Free download", "2GB/14 days for testing... for EUR 0.00" but simultaneously imposing on the user an automatic chargeable contract extension in its terms and conditions without clearly stating a price acts in breach of competition law. The Regional Court (LG) Berlin established this in a ruling.
Read more20 April 2008
Competition law cease-and-desist letter issued by a micro-enterprise
In the event of doubts regarding the operation of a business by the party sending the cease-and-desist letter, supplementary information regarding business activities, customers, number of business transactions and turnover figures is required in order to establish the status of being a competitor as a prerequisite for competition law claims (right to send cease-and-desist letters).
Read more12 March 2008
Loss of Standing to Sue in Mass Warnings
A court's determination of abusive legal action due to serial warnings (serial cautioners) pursuant to § 13 Abs. 5 UWG results in the loss of standing to sue as a competitor. This does not apply indefinitely if the cautioner demonstrates substantial changes in the material circumstances of the legal action, which now make it appear bona fide.
Read more21 February 2008
Partial delivery and partial invoice clauses in terms and conditions are anticompetitive
By means of a decision dated 25.01.2008 (5 W 344/07), the Court of Appeal of Berlin (KG Berlin) confirmed its case law to the effect that ineffective standard terms and conditions clauses are regularly also anticompetitive and subject to cease-and-desist notices. In contrast to the Higher Regional Court of Hamburg (OLG Hamburg) and the Higher Regional Court of Cologne (OLG Köln), this view was already held prior to the direct application of the Directive on unfair commercial practices (2005/29/EG) on 12.12.2007.
Read more08 January 2008
Unlawful trading in used software licences
Licences from the original licence holder and resale to a third party infringe the copyright of the software manufacturer. The manufacturer (author) of software can effectively restrict the right of disposal with regard to the usage rights granted in such a way that these cannot be further assigned. Any potential invalidity of such a contractual clause under general terms and conditions law does not stand in the way of this.
Read more03 January 2008
Elimination of the risk of repetition by means of a cessation declaration
If the creditor in a cessation claim accepts without reservation the cessation declaration demanded by him and issued by the debtor, the risk of repetition ceases to the extent to exist as a basis for a cessation claim. This also precludes the assertion of a claim going beyond the cessation contract arising from the same infringing act.
Read more15 December 2007
Descriptive internet link is not trademark infringement
The use of another party's trademark or identifier for the purposes of setting an internet link does not constitute trademark infringement if the sign does not serve as an indication of origin and does not relate to the user's own products, but is merely used to designate other parties' original products (trademark designation). The publication of content on the internet obliges the content provider to tolerate links to [...]
Read more24 November 2007
Use of third-party mark as keyword in Google AdWords advertisements
A trade mark infringement presupposes that the third-party sign is disclosed to the general public. This is precisely not the case with mere keyword targeting in the context of Google AdWords advertisements.
Read more10 November 2007
Liability for infringement of rights by an affiliate of an affiliate program
The review of other websites whose operators independently set a link to one's own offering and thereby infringe third parties' rights is fundamentally unreasonable. That economically justified and effectively functioning control mechanisms are available within the scope of an affiliate program must be proven by the party asserting an infringement of rights.
Read more29 October 2007
Liability of affiliate programme operator for metatags of affiliates
The operation of an affiliate programme for one's own Internet offering obligates one to contractually ensure that the advertising partner (affiliate) does not use the names of competitors in metatags. In the event of complaints, a mere request to the advertising partner to confirm that the trademark infringement has been discontinued is insufficient to avoid the operator's own liability as an intermediary (Störerhaftung).
Read more07 October 2007
Domain registration with consent of the name holder
A holding company that registers the business name of a subsidiary company as a domain with the latter's consent shall be treated in disputes over the domain name as if it were itself entitled to use the designation in question.
Read more22 September 2007
Identity of names and priority principle in domain name disputes
As a general rule, parties with identical names are governed by the priority principle – first come, first served. The Federal Court of Justice (BGH) has demonstrated in two landmark decisions, shell.de and krupp.de, that this principle does not always have to apply in domain name disputes. In these cases, the court decided by way of an interests assessment that the proprietors of exceptionally well-known trade marks or business designations could assert their rights against faster and […]
Read more18 September 2007
Legal Requirements for the Product Recommendation Function
Whether email is to be regarded as direct marketing depends solely on whether a specific addressee is contacted via his or her electronic mailbox (mailbox). Email is direct marketing and, as such, constitutes an unreasonable harassment of the recipient.
Read more06 September 2007
Use of third-party mark in description of an internet auction
Commercial activity exists in every independent activity pursued for economic purposes which does not constitute purely private, official or internal business conduct. An auction constitutes a trade mark infringement if it cannot be discerned from the design of the offer otherwise that the use of the trade mark is not intended to serve as an indication of the origin of the goods offered.
Read more22 August 2007
Sale of counterfeit OEM software licences
version of standard software is not a counterfeit. When calculating damages claimable by the software manufacturer, the market value of unbound OEM versions must be used, as the OEM market is not an illegal distribution channel.
Read more