Harmful to minors versus artistic freedom

Publication date: 03/05/2011

14597 times read
 :: 7895 Votes  

Decision of VG Berlin (Administrative Court Berlin) of 16/12/2010, file number: 27 L 355.10

The operator of an Internet portal where erotic art is published in form of literature, pictures and video material, must protect it with a youth protection program or other arrangements, since young people can be affected in their personal development. This does not oppose to the artistic freedom but in case of a conflict between artistic freedom and protection of minors youth protection, the constitutional act should be followed.

Category: Internet Law, Youth Protection, Entscheidungen

Telemarketing calls are not consented with the mere participation in a lottery

Publication date: 03/05/2011

18363 times read
 :: 10301 Votes  

Judgement of the OLG Stuttgart (Higher Regional Court Stuttgart) of 11/11/2010, file number: 2 U 29/10

Consumers who provide their telephone number in a lottery do not automatically consent to telemarketing calls. In case that that consent is separately asked does not change anything since it cannot be assumed that the participant signs up with his real name. According to this, there is no effective consent. The burden of proof for the evidence that the participant of the lottery has given his real name shall be carried by the one who performs the marketing call. Shifting of the burden of proof would only happen in case that the data is not freely...

Category: Internet Law, Telephone Advertising, Consumer Law, Advertising Law, Entscheidungen

Personal rights are not violated due to the lack of recognisability

Publication date: 09/03/2011

38113 times read
 :: 14559 Votes  

Judgement of AG Kerpen (Local Court Kerpen) of 04/11/2010, file number: 102 C 108/10

If footage of a traffic accident is available on the Internet, no consent is necessary for the publication if the people involved cannot be recognised. A visible licence plate number is not a decisive factor since this identifies the vehicle, not the driver. In case that the recognition is only based on the particular means of transport in relation with local conditions, as in the reported incident, the publication does not constitute any infringement of personality rights.

Category: Internet Law, Personality Right, Media Law, Film Law, Entscheidungen

Second dentist opinion on the Internet

Publication date: 02/03/2011

14739 times read
 :: 9271 Votes  

Judgement of BGH (Supreme Court) of 01/12/2010, file number: I ZR 55/08

A dentist who makes on an Internet platform a counteroffer to the colleague’s treatment and cost plan that the patient has published there, is not contrary to the question of fairness of the legal profession either to the professional standards. In case that this dentist makes a treatment contract with the patient and he pays a part of his fee in return for the use of the virtual marketplace, this is not an impermissible fee promise for the location of patients. Accordingly, the operator of the internet platform does not act anti-competitively.

Category: Advertising Law, Professional Law, Unfair Competition Law, Entscheidungen

Satirical site concerning own employer is not a reason for dismissal

Publication date: 08/02/2011

15821 times read
 :: 10072 Votes  

Judgement of LAG München (Higher Labour Court Munich) of 26/08/2010, file number: 4 Sa 227/10

Provided that an employee creates a satire site based on the basic division of the former website of his employer and whose origin can only be identified by insiders, an extraordinary dismissal is not allowed. Even with remarkable audacity, lack of design imagination and lack of awareness of potential risks of defamation during the creation of the satire, this is principally protected by the freedom of expression. Although insiders may indicate the describing and supposed conditions as an offence against the employer, this does not carry any repercussion....

Category: Internet Law, Labour Law, Entscheidungen

Inflated claim forms regarding reimbursement of taxes and airport charges of "Germanwings" not used anymore

Publication date: 02/02/2011

13671 times read
 :: 8921 Votes  

Judgement of LG Köln (Regional Court Köln) of 28/10/2010, file number: 31 O 76/10

Clients of “Germanwings” will no longer be discouraged by complicated and difficult to understand claims forms regarding the reimbursement of the already paid taxes and airport charges. The consumer was prejudiced through the handwriting filling and the demand to submit detailed, often redundant, information concerning the restitutory right.

Category: Consumer Law, Unfair Competition Law, Entscheidungen

Advertising slogan “Mit Liebe gemacht” (“Made with love”) is not as trademark registrable

Publication date: 28/01/2011

9904 times read
 :: 6235 Votes  

Decision of BPatG (Federal Patent Court) of 09/12/2010, file number: 25 W (pat) 537/10

The advertising slogan “Mit Liebe gemacht” cannot be registered as a trademark in the areas of the food and stimulants industry since does not provide any distinctive character. The average consumer sees in the phrase a merely advertising slogan with a purchase incentive or quality specification. The consumer is constantly confronted here with advertising.

Category: Trademark Law, Trademark Registration, Entscheidungen

Expression of opinion or insulting criticism in the political discourse?

Publication date: 25/01/2011

16383 times read
 :: 11285 Votes  

Judgement of LG Lübeck (Regional Court Lübeck) of 28/10/2010, file number: 14 S 135/10

In order to assess whether a statement is a statement of fact or an expression of opinion, the context has to be considered. It has also to be considered whether the statement falls within the scope of a political discourse. Participants of a political battle of opinions must tolerate statement that, isolated, would approach the limit of insulting criticism.

Category: Personality Right, Media Law, Press Law, Entscheidungen

Advertising the activation of “fat-eater” hormones without any scientific background

Publication date: 12/01/2011

16818 times read
 :: 10852 Votes  

Judgement of OLG Hamm (Higher Regional Court Hamm) of 30/11/2010, file number: I-4 U 88/10

It is illegal to advertise with the effect of food that does not join the current scientific knowledge or which proof is not scientifically provided. Thus, the advertising of capsules that are supposedly “fat-eaters” stimulating the body’s own slimming hormone without providing any study proof is misleading. In particular, consumers who suffer from their obesity are often less critical to new products being advertised and therefore more vulnerable than other consumers.

Category: Consumer Law, Advertising Law, Unfair Competition Law, Pharmaceutical Law, Food Law, Entscheidungen

As Internet connection holders, parents are liable for their (teen) children

Publication date: 12/01/2011

72300 times read
 :: 32613 Votes  

Decision of LG Köln (Regional Court Köln) of 01/12/2010, file number: 28 O 594/10

According to the Regional Court of Cologne, the fact of the regular reporting should have met the public consciousness that, by handing over an Internet connection to thirds, right infringements are not implausible. Therefore, parents must ensure, through consistent performance of their duties, that copyright infringements do not occur.

Category: Internet Law, File Sharing, Liability, Media Law, Music Law, Copyright Law, Entscheidungen

Minors as alcohol test buyers

Publication date: 06/12/2010

13723 times read
 :: 8959 Votes  

Judgement of the LG Hamburg (Regional Court Hamburg) of 02/09/2010, file number: 416 O 78/10

Service station operators are not allowed to sell any alcoholic drinks to minors. To prove such an infringement of the competition law, a minor is permitted to act as an underage test buyer provided that the minor purchases the alcohol only for the purposes of the test purchase and not for the own consumption.

Category: Consumer Law, Unfair Competition Law, Entscheidungen

Modernization of a copyrighted building

Publication date: 22/11/2010

9075 times read
 :: 5578 Votes  

Judgement of the OLG Stuttgart (Higher Regional Court Stuttgart) of 06/10/2010, Az: 4 U 106/10

During modification of a copyrighted building, the interest in the modernization outweighed the interest of the author of an unmodified maintenance of the building. Balancing of interests, the modification should include the nature and scope of the protected structure and the remaining protective effect of the relevant copyright law, which, however, reduces the expiry of the protection time. Any possible planning alternatives and their costs implications should not be really taken into account as general and public interests.<span style="font-weight:...

Category: Copyright Law, Architects Copyright Law, Entscheidungen

Prohibition of chargeable poker games on the Internet

Publication date: 19/11/2010

12261 times read
 :: 7512 Votes  

Decision of VG Wiesbaden (Administrative Court Wiesbaden) of 12/08/2010, file number: 5 L 142/10.WI

Public gambling is not allowed in Germany without the competent authority’s permission. Since poker is to be considered as gambling in accordance with the majority view, the organizing of chargeable poker games on the Internet is forbidden and falls within the scope of the gambling treaty and the gambling laws of the country. The parties concerned should decide the corresponding prohibition order in detail. 

Category: Internet Law, Gambling Law, Entscheidungen

GEZ employees effectively banned from the premises

Publication date: 19/11/2011

19506 times read
 :: 12305 Votes  

Judgement of AG Bremen-Blumenthal (Local Court Bremen-Blumenthal) of 23/08/2010, file number: 42 C 43/10

Property owners may restrain GEZ employees from unreported and unauthorised trespassing and, GEZ employees may also be banned from premises. This could happen provided that the GEZ employees’ purpose is obtaining the necessary information to collect the license fee. GEZ is not entitled to get any other information as the stated on the broadcasting contract. In case that the ban from the premises is infringed, the property owner’s privacy may be violated.

Category: Media Law, Broadcasting Law, German TV and Radio Licensing Office, Personality Right, Entscheidungen

“Kaffeerösterei Freiburg” cannot be protected

Publication date: 04/11/2010

14702 times read
 :: 8600 Votes  

Decision of BPatG (Federal Patent Court) of 19/10/2010, file number: 25 w (pat) 200/09

The mark “Kaffeerösterei Freiburg” cannot be protected as a trademark since this would be contrary to the protection of the § 8 para. 2 MarkenG (Trademark Act). “Kaffeerösterei Freiburg” merely describes that the offered goods and services are those produced in a coffee roasting in Freiburg. The necessary distinctive facts regarding the origin from a particular company are missed.

Category: Trademark Law, Trademark Registration, Entscheidungen

"POST" remains as a trademark

Publication date: 04/11/2010

105671 times read
 :: 10840 Votes  

Decision of BPatG (Federal Patent Court) of 29/10/2010, file number: 26 W (pat) 27/06

The cancellation of the coveted trademark “POST”, concerning delivery services, has been rejected by the Federal Patent Court. “POST” can be classified as a trademark since the word, as a denominative mark is adequate to distinguish goods and services. Though, the trademark consists merely of an indication, which may serve to designate a characteristic of the services. However, the protection released from § 8 para. 2 MarkenG (Trademark Act) avoids the cancellation since the word “POST” is established on the relevant field of business.

Category: Trademark Law, Trademark Cancellation, Entscheidungen

YouTube liable copyright infringement through video clips

Publication date: 25/10/2010

15647 times read
 :: 8347 Votes  

Judgement of LG Hamburg (Regional Court Hamburg) of 03/09/2010, file number: 308 O 27/09

YouTube is liable for the contents of videos anonymously uploaded, which infringes the copyright law. This follows from the principle “to make one’s own” foreign contents since from the point of view of an objective observer, the videos can be understood as from the internet platform itself. 

Category: Internet Law, Liability, Media Law, Top Decisions, Entscheidungen, Judgements

Slap for 1 & 1 – Higher Regional Court Koblenz declares many terms and conditions clauses invalid

Publication date: 25/10/2010

15001 times read
 :: 10395 Votes  

Judgement of OLG Koblenz (Higher Regional Court Koblenz) of 30/09/2010, file number: 2 U 1388/09

In a recent judgement, the Higher Regional Court has dealt with the general terms and conditions of a provider of web hosting contracts.

Thus, hereafter, a clause is particularly ineffective. This states that an alteration of the contract with the user of the terms could be possible if this is reasonable for the customer and the costumer does not disagree. The limitation that the alteration of the contract must be “reasonable” for the parties is too vague.

Category: Warning letter, Abmahnkosten, General Terms Law, Entscheidungen

Credit- and cash cards fees settled by airlines are not permitted

Publication date: 25/10/2010

31717 times read
 :: 17455 Votes  

Judgement of BGH (Supreme Court) of 20/05/2010, file number: Xa ZR 68/09

a) Following clause, found in the general terms and conditions of an airline, which offers its services almost exclusively as distant sales, has been reviewed:

“Since security and administrative costs have increased, Ryanair will not accept any cash payments for the tickets, fees and costs for the excess luggage and sport equipment.”

b)  Following clause of the general terms and conditions of a company of that kind disadvantages the passenger inappropriately, contrary to the principle of equity and good faith and is, therefore, invalid:

"(1) credit card fee per...

Category: General Terms Law, Long Distance Sales Act, Consumer Law, Unfair Competition Law, Entscheidungen

Slogan "KEEP THE CHANGE" can be registered as a trademark

Publication date: 07/10/2010

16269 times read
 :: 7623 Votes  

Judgement of BPatG (Decision of the Federal Patent Court) of 20/07/2010, file number: 33 W (pat) 65/09

The advertising slogan "KEEP THE CHANGE" is registered as a trademark for services in finance and banking. The necessary distinctive character exists since the phrase is indeed an expression of the English vocabulary, concerning the services it is not purely descriptive but rather in need of interpretation.

Category: Trademark Law, Trademark Registration, Entscheidungen
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