News & Decisions

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 12/05/2010, file number: 3 U 58/08

The name “Stimmt´s”, for the heading of a quality weekly newspaper, is protected. This happens since the colloquial form of the question has a minimum level of originality and a distinctive character for the consumer. The operator of a commercial Internet portal is therefore not allowed to use the name “Stimmt´s” for the knowledge rubric of his website, which is concerned with similar matters. 

Judgement of LAG Niedersachsen (Higher Labour Court Niedersachsen) of 31/05/2010, file number: 12 Sa 875/09

When an employee reads and writes private e-mails during the working hours and over a longer period – on several days even in such a time frame that it could suggest that no time is left for the job completion –, this excessive private emailing justifies an extraordinary dismissal without previous warning.

Judgement of AG Berlin-Mitte (Local Court Berlin) of 12/01/2010, file number: 14 C 1016/09

Provides a mobile service to its users the possibility to register the cell number in order to apply for offered services and a confirmation short message follows after mentioned application, this SMS cannot be considered as a junk mail. The SMS has no sales promotion purpose but fulfils the information duty.

Judgement of LG Köln (Regional Court Cologne) of 12/05/2010, file number: 28 O 175/10

A nationwide well-known weather forecaster must not tolerate that the press publishes concrete details about the investigation concerning the procedure against him. Although the rape allegations count with an important public interest, they could cause a difficult complete rehabilitation of the weather forecaster in case of exculpation.

Decision of the Court of Justice of the European Union of 08/07/2010, file number: T-30/09

The Court of Justice of the European Union affirmed the likelihood of confusion between the word marks “peerstorm” and “PETER STORM”, both registered for clothing articles. Both trademarks have a visual, phonetic and conceptual similarity. Although the use of signs, made up of first and last name, is usual in the clothing sector, a likelihood of confusion exists if both trademarks are used for the same product line.

Judgement of LG Düsseldorf (Regional Court Düsseldorf) of 03/02/2010, file number: 12 O 173/09

An online travel portal, as a mediator of flights, must indicate the total price of a flight including any applicable booking fees, as soon as the price is indicated as “total price”. A small asterisk note is not enough if the fees are not transparently specified.

Judgement of AG Marburg (Local Court Marburg) of 08/02/2010, file number: 91 C 981/09

The provider of a website where apparently free downloads are offered, however misleads the customer regarding the true costs and lures him into a chargeable subscription, makes himself liable to prosecution because of fraud, according to § 263 StGB (German Criminal Code). A lawyer who, on behalf of the provider, warns the non-paying customers and even tries to enforce the demands in court, makes himself also liable to prosecution because of accessory to fraud.

Judgement of KG Berlin (Superior Court of Justice Berlin) of 15/06/2010, file number: 5 U 35/08

Copies of already published photographs are certainly permissible as a part of a quotation and if they are not only used with pure decorative and illustrative purposes. The reproduction of an unmodified small picture in a larger picture shows a “copyright relevant intervention” according to §§ 72, 15, 16 UrhG (German Copyright Act).

Judgement of OLG Oldenburg (Higher Regional Court Oldenburg) of 22/04/2010, file number: 1W 16/10

A company may principally advertise with a long family tradition. The so-called maturity stage, however, contains hidden quality features which may influence the customer and his purchase decision. Therefore, this maturity stage may occur in a certain extend. Advertising with the continuity of a company is only allowed if this continuity really lasted during the highlighted period. Advertising with a 110-years-old family tradition, although the company has been re-established 18 years ago, is inadmissible and anticompetitive.

Judgement of OLG Köln (Higher Regional Court Cologne) of 27/04/2010, file number: 3 U 160/09

The delivery company DHL may not provide in his terms and conditions that customers must give notice in writing in case of (partial-) loss or damage within seven days after delivery. This clause excludes inadmissibly writings such e-mail or fax. Additionally, the clause clears insufficiently up, that to meet the deadline, timely sending of the damage notice shall suffice.

Judgement of the OLG Hamm (Higher Regional Court Hamm) of 04/05/2010, file number: 4 U 32/10

Advertises a distributor of advertising material with the words "Free delivery within Germany and Austria for online orders" without pointing out that a surcharge of 4,80 € would be charged on orders under 50 € and that packaging expenses will be also calculated on online orders, so the distributor behaves anticompetitive compared to other competitors.

Judgement of LG Berlin (Regional Court Berlin) of 27/04/2010, file number; 27 O 66/10

The plaintiff, a famous comedian, is in an alimony dispute with his father, who had admitted to the press in the past that he was impoverished and dependent on the maintenance of his son. The father’s lawyers wrote that “it is written in the stars to what extend such procedure can be kept away from the interest of the public”. The plaintiff demanded an omission from his father to speak to the media about the alimony procedure and about the fact that the plaintiff pays no maintenance. Thereafter, an article was published in which the father was quoted with the words: “My...

Judgement of LG Braunschweig (Regional Court Braunschweig) of 02/06/2010, file number: 22 O 514/10

A gym advertised in print media with a training belt “Slim Belly” which should bring “8,6 cm less waist within four weeks”. The campaign has not mentioned that, in addition, endurance training is required. Even during the proceeding, the studio operator could not demonstrate the sole effect of the belt, therefore, the advertising is misleading.

We are pleased to inform that Lawyer Monika Bandouch is entitled with immediate effect to bear the title acredited certified lawyer in Protection of Industrial Property.

The lawfirm.biz-Team congratulate sincerely!

The Ravensburger publishing was subject to two procedures against its Spanish competitor Educa Borras S.A. The court of the European Union in Luxemburg delivered the judgement that the word “Memory” has a purely describing nature and therefore it is not capable of being registered as a trademark.  Hence, the community trademark applied by Ravensburger was deleted on request of the Spanish games and puzzles manufacturer. For several years now, the term “Memory” is protected in Germany and Austria for games. In a further judgement, the court consequently approved the application of the figurative mark “Educa Memory game”. There is no danger of confusion with the Ravensburger games. The...

The public prosecutor’s office Hamburg has initiated preliminary investigations against Google, since the company has possibly violated the German Penal Law. The company photographed streets across Germany for its Internet service Street View, thereby data from unsecured WLAN connections and parts of e-mails have been “mistakenly” stored. Should private data have been unauthorised intercepted, an offence could be considered, according to § 202b StGB (German Penal Code).

Comment of the lawyers Hagen Hild and Jörg Khöber

Comment of the lawyers Hagen Hild and Jörg Khöber for the June-edition of the legally specialized magazine Kommunikation & Recht, about the judgement of the OLG Düsseldorf (Higher Regional Court Düsseldorf) of March 8, 2010, file number about the topic: Admissibility of audio-visual recordings in medical practices and the right to forbearance of future clandestine recordings.

As from June 11, 2010 new regulations of the German Civil Code are effective in the area of distant sales and e-commerce. Thereby, the withdrawal instruction sample becomes a law status. Besides, an “eBay clause” provides for the fact that in future also in the sales through the biggest Internet auctioneers, a withdrawal term of 14 days and regulations to the compensation for the lost value will be possible.

Judgement of the LG Köln (Regional Court Köln) of 10/06/2009, file number: 28 S 4/09

The eBay assessment comment “never, never, never again! Money back, however goods kept – insulting and impudent!!!” stands on expressions of opinion elements as well as on statements of facts. As long as the facts are true at the time of the assertion of the comment and establish ties with the expressions of opinion to the factual reference, this is not an inadmissible abusive criticism. In view of the economic interests of the eBay users and the function of the assessment, easy to remember formulations may be also used. A claim to deletion of the assessment is not...

Judgement of LG Hamburg (Regional Court Hamburg) of 19/01/2010; file number: 310 O 258/09

Amazon has to make sure that books with fixed prices have a quoted price which is not lower that the fixed retail price. Even if such control of such a large amount of books would be related with huge effort, Amazon should accept it to maintain the fixed book prices on its portal.