Personality rights cession

Publication date: 28/10/2009

21757 times read
 :: 4745 Votes  

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 15/09/2009, file number: 7 U 1/09

There is a possibility to confer the own personality rights on third parties. This can happen, for example, after ending a contract. A complete cession of these rights is although not possible; a cession of, for example, commercial parts of single personality rights is allowed.

Category: Personality Right, Advertising Law

Cease and desist letter “subject to a condition subsequent”

Publication date: 16/10/2009

4335 times read
 :: 2440 Votes  

Judgement of LG Bochum (Regional Court Bochum) of 01/09/2009, file number: I-12 O 85/09

A forbearance debtor, who signs a cease and desist letter – due to illegal phone advertisement – subject to a condition subsequent, dispels a risk of recurrent infringement. The debtor would like to forbear through such formulation from the received obligations when his supposed illegal behaviour turns out as lawful, e.g. by law or high court decisions.

Category: Consumer Law, Unfair Competition Law, Bothersome Ads, Telephone Advertising

BILD against taz: About the limits of amusing advertising comparisons

Publication date: 02/10/2009

5285 times read
 :: 1937 Votes  

Press release No. 201/2009 of BGH (Federal Supreme Court) about the judgement of 01/10/2009, file number: I ZR 134/09

Amusing and ironic comparisons in a commercial are allowed within certain limits. If the advertising does not disrate the competitor, nor reveals the absurdity creating a merely amusing exaggeration, the advertising does not act in an anticompetitive manner.

Category: Media Law, Broadcasting Law, Advertising Law

Advertising emails without consent are an unacceptable annoyance

Publication date: 02/10/2009

6236 times read
 :: 3487 Votes  

Press release of AG München (Local Court Munich) about the judgement of 09/07/2009, file number: 161 C 6412/09

An enterprise that sends advertising emails to the e-mail address of a medical practice without consent infringes against the rights of the addressee and his protected business interest. The dispatch of such advertising mails creates an unacceptable annoyance for the receiver, who can demand an omission. The importunity is caused by the fact that the receiver must invest time and effort in sorting the unrequested e-mails.

Category: Internet Law, Consumer Law, Advertising Law, Unfair Competition Law, Bothersome Ads, eMail Advertising, IT Law

Advertising with “low sugar jam”

Publication date: 21/09/2009

8349 times read
 :: 4211 Votes  

Judgement of EuGH (European Court of Justice) of 10/09/2009, file number: C-366/08

The concept “low sugar jams” refers to the jams with the name “simple jam” and “extra jam” which sugar content is clearly reduced compared to the reference value of 60 %. “Extra jam” refers to products which sugar content is 58 % and they cannot be considered as low sugar products in terms of this regulation.

Category: Trademark Law, Advertising Law, Unfair Competition Law, Food Law

Ban of publicity for tobacco groups

Publication date: 18/09/2009

2784 times read
 :: 1163 Votes  

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 19/08/2009, file number: 5 U12/08

Tobacco groups are not allowed to advertise for their cigarettes in newspapers as image advertising. Even the attempt to describe the tobacco products as “bio-tobacco”, “untreated” or “natural” has been seen by the judges of the higher regional court Hamburg as an infringement against the tobacco law. The judges have clearly expressed that health and youth protection must have absolutely priority.

Category: Media Law, Advertising Law

Supply of glasses

Publication date: 14/08/2009

2731 times read
 :: 1434 Votes  

Judgement of BGH (Federal Supreme Court) of 09/07/2009, file number: I ZR 13/07

The wish of the patient to receive the complete assistance from the same hand is not enough to justify the reference to a certain optician or the delivery and adaptation of the glasses by the ophthalmologist. Hence, a reference to a certain optician is anticompetitive.

Category: Unfair Competition Law, Advertising Law, Professional Law

No coupons for free games in the slot machine

Publication date: 21/07/2009

3993 times read
 :: 2205 Votes  

Judgement of VG Hannover (Administrative Court Hannover) of 17/06/2009, file number: 11 A 4402/07

In newspapers printed coupons which allow a free game in a slot machine, infringes against the gambling ordinance. They should lure new customers to the slot machines and to bind them for long periods of time to the amusement arcades. This disowns against the § 9 paragraph 2 SpielV (Gambling Ordinance) which purpose is to protect the players towards the gambling incentives which are increased through advertisement.

Category: Gambling Law, Advertising Law

Advertising with “Stiftung-Warentest”

Publication date: 09/07/2009

3028 times read
 :: 1448 Votes  

Judgement of LG Duisburg (Regional Court Duisburg) of 29/05/2009, file number: 22 O 121/08

A company is not allowed to advertise with the logo of “Stiftung-Warentest” if the offered product is newer than the tested product. This would offend against the unfair competition misleading ban.

Category: Advertising Law, Unfair Competition Law

Admissibility of cooperation between ophthalmologist and optician

Publication date: 09/07/2009

6779 times read
 :: 3011 Votes  

Press release of BGH (Federal Supreme Court) of 09/07/2009, file number: I ZR 13/07

The Federal Court of Justice has decided in a current judgement that ophthalmologists might co-operate only with an optician and offer his frames if this “are a component of the necessary medical therapy because of its specific features”. Otherwise, such an action would infringe against the Medical Association's professional code of conduct   and would be anticompetitive.

Category: Unfair Competition Law, Advertising Law, Professional Law

Publication of the fax number means no approval for fax advertising

Publication date: 06/07/2009

11365 times read
 :: 5096 Votes  

Judgement of OLG Hamm (HRC Hamm) of 13/11/2008, file number: 4 U 150/08

If a company arranges a fax number, i.a. for the customer's contact and publishes on own homepage, no approval can be understood for the sending of advertisement by fax. Rather, strict demands should be made for the presentation of such an approval, this approval must be given before sending the concerning fax and just for the concrete case. Otherwise this kind of advertisement means an unfair competition misfeasance.

Category: Telecommunication law, Advertising Law, Unfair Competition Law, Bothersome Ads, Fax Advertising

Advertising phone calls just only if expressly approved

Publication date: 29/06/2009

6055 times read
 :: 3535 Votes  

Judgement of LG Bochum (Regional Court Bochum) of 15/05/2008, file number: 14 O 61/08

When an approval clause is so formulated that within the storage and transmission of dates these are held for future telephonic application, such anticipated approval is inadmissible in the general terms and conditions. Therefore, the use of the storage data is to be valued for advertising phone calls as an unacceptable annoyance, provided that the explicit approval of that clause has not been given.

Category: Unfair Competition Law, Bothersome Ads, Gambling Law, Telephone Advertising, Advertising Law

Statutory health insurances: Ban of the advertising with cheap foreign mail-order pharmacy

Publication date: 23/06/2009

4228 times read
 :: 2456 Votes  

Decision of LSG Mainz (Higher Social Court Mainz) of 04/06/2009, file number L 5 KR 57/09 B ER

German statutory health insurances may not advertise their members through a bonus system, by which money would be saved by ordering drugs on a foreign internet and mail-order pharmacy. Rather, such an action violates against valid medicament contracts (ALV) of the single federal states. In addition, this form of advertising is also unfair, since it offends against the basic-juridically standardised policy of neutrality.

Category: Advertising Law, Unfair Competition Law, Pharmaceutical Law

Undesirable telephone advertisement after concluding a current account

Publication date: 10/06/2009

4177 times read
 :: 2668 Votes  

Judgement of LG Hamburg (Regional Court Hamburg) of 23/04/2009, file number: 315 O 358/08

The approval clause of a new current account contract regarding the wish to use the service of the bank to be informed also by phone it fax, is too wide. Since the bank, using that clause, also advise about other financial matters exceeding the contractual relationship, an infringement against § 307 paragraph 2 No.1 BGB (German Civil Code) is given and the clause is therefore ineffective.

Category: Consumer Law, Unfair Competition Law, Bothersome Ads

T-Mobile - XtraPac

Publication date: 10/06/2009

5954 times read
 :: 3365 Votes  

Judgement of BGH (Federal Supreme Court) of 05/11/2008, file number: I ZR 5/06

If the sales of a mobile phone are promoted together with a prepaid card including a fix start credit, there is no obligation to state the rates for the use of the card, but the package price regarding the mobile phone and the prepaid card. If the mobile phone is locked with a SIM, the durability of the locking and the expenses in case of a premature connection should be made known.

Category: Telecommunication law, Consumer Law, Advertising Law, Unfair Competition Law, Price Quotation

Certificate of quality for lawyers

Publication date: 15/04/2009

4022 times read
 :: 1758 Votes  

Judgement of LG Köln (Regional Court Cologne) of 03/02/2009, file number: 33 O 353/08

In case lawyers’ quality was checked, this quality should be clearly recognisable on the conferred certificate. The advertising of such certificate is delusive, even if it suggests the criteria is objective, while actually, it is installed in the testing centre’s sole discretion. 

Category: Advertising Law, Professional Law

"Das Örtliche" as a local advertising platform

Publication date: 15/04/2009

2353 times read
 :: 1505 Votes  

Judgement of LG Paderborn (Regional Court Paderborn) of 24/02/2009, file number: 7 O 67/06

If a service company is promoted in "Das Örtliche", is to be assumed that this company enterprise is settled in the searched place or town. Nevertheless, misdirection is not given in case the searched company moves after the phone book editorial deadline, which means it is still promoted under its old address. 

Category: Advertising Law, Professional Law

Significant communicative device features for delusive advertisement

Publication date: 06/03/2009

3830 times read
 :: 2504 Votes  

Judgement of BGH (Federal Supreme Court) of 11/09/2008, file number: I ZR 58/06

Advertisement is delusive for the consumer when the average consumer is not able to gain essential information from the advertisement. The significant communicative device features shall be considered. In case of television commercials, the consumer should consider audio-, as well as video information. (§5 paragraph 2 clause 1 UWG – Fair Trade Law; article 7 paragraph 1 and 3 of the guideline 2005/29/EG about unfair business internships).

Category: Advertising Law, Unfair Competition Law, Pharmaceutical Law, Internet Law

"The fastest supplier DSL all over the country!"

Publication date: 27/02/2009

5354 times read
 :: 3570 Votes  

Judgement of LG Köln (Regional Court Cologne) of 25/09/2008, file number: 84 O 15/08

The advertisement of a telecommunication supplier, that it offers itself as the fastest DSL connection in the federal territory is unfair according to §§3, 5, 8 UWG (fair trade law), it is misleading for the general consumer.

Category: Internet Law, Telecommunication law, Consumer Law, Advertising Law, Unfair Competition Law, Comparative Advertising
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