Institute of Global Law

German Legal News - Private Law

The District Court in Berlin granted an injunction stopping the performance of Gerhart Hauptmann’s “The Weaver” at the National Theatre in Dresden on the grounds that the director had introduced chorus scenes without prior consent of the copyright holder Felix Bloch Publishing (05.12.2004). However, the Court turned down a separate application lodged by talk show host Sabine Christiansen, who had alleged that the play incited violence against her.

The Federal Supreme Court lifted competition protection enjoyed by Lego bricks since they were invented over 40 years ago declaring that such protection was no longer necessary (03.12.2004). In a decision in 1964, which was also followed by Italian courts, the Supreme Court had ruled that it would be a violation of competition law for other companies to produce bricks compatible with Lego bricks (the so-called “Klemmbaustein” approach).

The Secretary of State for Justice, Brigitte Zypries, has brought forward new legislation on advance instructions concerning medical care (05.11.2004). The goal of the legislation is to increase legal certainty in order to ensure that medical personnel does not go against the will of the patient for fear of legal sanctions. The media, professional organisations and the legal community have criticised the proposals for going too far. Notably, the inclusion of non-lethal diseases and oral wills goes against the recommendations of the Bundestag’s Ethics Committee.

Two local politicians in Bavaria who were convicted of committing electoral fraud during the 2002 municipal elections have been ordered to pay damages of €151,000 to finance a re-run of the elections (10.10.2004). The district court in Munich argued that the damages should be paid because the pair could have foreseen that their actions would lead to a complete rerun of the elections.

The District Court in Munich has ruled that the registration of internet domains for private use does not infringe on the right of companies to establish their brand names (13.09.2004). However, the court said that the commercial registration of domains in order to sell them at a later point would have to be considered an anticompetitive obstruction.

Following the simplification of the system of time prescription under the reform of the law of obligations, the Government plans to simplify all limitation rules, including those falling outside the Civil Code, with the exception of those pertaining to public law (01.09.2004).

The district court in Munich ruled that the father of an eight-year-old boy who suddenly developed a habit of scratching car doors with sharp instruments – having not previously displayed any abnormalities of this kind – had not violated his duty of supervision and was therefore not liable to pay damages (17.08.2004). The decision illustrates that, contrary to popular belief, parents are only liable for damages caused by their children if they have neglected their duty of supervision.

There has been great concern in the German media (02.08.2004) concerning the decision of the European Court of Human Rights in the case brought by the Princess of Monaco (a so-called ‘Caroline’ case). While the Federal Government has decided not to appeal against the ruling (see the judgement), press organisations have criticised the Court for putting the personality rights of a celebrity above the freedom of the press. The decision contradicts the approach adopted by the Federal Constitutional Court in Germany, where much reliance is placed on self-regulation by the media. It is therefore seen as a real shift in the debate on press freedom.

The district court in Stuttgart ordered the local authority in Shorndorf to pay a 48-year old man € 600 in damages for pain and suffering after he was attacked by a swan in a public park (02.11.2004). The court found that the authority had violated its duty of care because it had only placed warning signs about the swan, which was known to be aggressive, at the northern and southern ends of the lake.

From June 2004, the new Design Patent Act (Geschmacksmustergesetz) will replace the 1876 Act, the oldest legislation on patent law in Germany. The Act establishes a new application procedure at the Patents Office and extends patent protection to 25 years.

The Federal Supreme Court ruled that sending spam emails without the consent of the receiver is an infringement of competition law (03.05.2004). The defendant, a consulting agency, had sent its “newsletter” several times to the claimant. The court held that the sender had to prove that the addressee actually asked to be sent emails frequently; otherwise competition law had been breached (§ 1 UWG)

A government commission for consumer protection in life insurance contracts has made a number of recommendations on how to protect people’s investments more efficiently (22.03.2004). Among other measures, the commission recommended guaranteed surrender values.

February is carnival season in Germany, especially in the Rhine-Main area and in the South and Southwest, and the Consumer Advice Centre of Saxony has published a collection of legal cases related to carnival (23.02.2004). These include a ruling of the district court in Trier finding that a claim for being hit by confectionary cannot be brought.For more information see http://www.verbrauchernews.de/0000016347.html

The Court of Appeal in Hamburg has handed down a judgment according to which even persons of contemporary history (Personen der Zeitgeschichte) do not have to tolerate the commercialisation of their name without consent. National soccer goalkeeper Oliver Kahn successfully took legal action against PC game producers Electronic Arts, who used Kahn as a character in the game “FIFA 2002” without having acquired permission to make use of his name and image (13.01.2004).

Actress Uschi Glass lost her case against tabloid news paper “BILD” at the district court in Munich (05.12.2003). The newspaper had published an article about the 27-year-old son of the actress titled “Row in a Brothel” followed by a picture of the son. Whereas Uschi Glass saw her reputation damaged by the article, the court held that freedom of press was more important in this case, even if personal information is uncovered. This is especially true because the article made clear that the actress was not directly involved in that incident.

The Court of Appeal in Cologne delivered a ruling that Ryanair advertising the airport of Weeze as “Niederrhein (Düsseldorf)” is unfair competition (§ 3 UWG). Customers can be misled by this labelling and expect an airport at least in the south of that area and not 70-80 km away. Providing this information through further links is not sufficient, because offers can lead passengers to book as quick as possible. In comparison with Frankfurt-Hahn, Weeze is a relatively unknown airport, so that people cannot be expected to receive the information elsewhere (08.12.2003).

Following a decision of the Federal Constitutional Court, the Bundesrat proposed reforms in family law designed to enhance the rights of unmarried fathers (01.12.2003). The reform would reform the procedure of awarding fatherhood as well as the right to custody, which can be obtained by mothers more easily.

The district court in Arnsberg dismissed the first action against a cigarette company in Germany (14.11.2003). A 56-year-old chain smoker from Lippetal had sued Reemtsma (owned by Imperial Tabacco) because 40 years of smoking cigarettes had apparently caused him to suffer two heart attacks. He demanded £154,350 because Reemtsma had not given sufficient warning about the hazards of smoking and the risk of addiction. The court dismissed this claim, inter alia, because it thought it unlikely that a warning would have stopped the claimant from smoking.

Princess Caroline of Monaco is suing Germany because the Federal Constitutional Court qualified her as a public person and allowed the publication of unauthorized photos taken in public (29.10.2003). The European Court of Human Rights will now have to decide the issue on the basis of art. 8 of the European Convention of Human Rights and Fundamental Freedoms.

The distribution of two novels has been stopped recently because some of the character descriptions came extremely close to real persons, who have claimed a violation of their personal rights. After the Landgericht Munich banned Maxim Billers “Esra”, the Landgericht Berlin confirmed an injunction against Alban N. Herbst’s “Meere” on 26 October 2003. Biller’s publishing house Kiepenheuer & Witsch has appealed against the ruling.

The district courts in Hamburg and Berlin have issued eight injunctions against music producer Dieter Bohlen’s (ex-Modern Talking) latest book “Behind the Scenes” (“Hinter den Kulissen”). Several celebrities, among them Bohlen’s ex-partner in Modern Talking, Thomas Anders, saw their personal rights infringed by passages in the book (04.10.2003). In spite of these injunctions about 200.000 copies have been sold through smaller retailers.

Former Deutsche Telecom boss Ron Sommer failed to obtain an injunction against the magazine “Wirtschaftswoche”. In 2000, the Wirtschaftswoche had published a photo composition showing Ron Sommer under a crumbling T, the icon of Telecom. The BGH (30.09.2003) held that neither the deformation of Sommer’s body and face in the photo nor the satirical content infringed any of his rights.

The savings bank of Rhein-Neckar-Nord has been ordered to pay damages of about €17,000,000 (£12,037,700) by the district court in Mannheim (30.09.2003). The Court held that the bank, in spite of knowledge concerning the insolvency of a client, made available further credits. The opening of bankruptcy proceedings was thus delayed.

The District Court in Düsseldorf has allowed charges to be brought against former managers and directors of the mobile phone company Mannesmann. These managers are suspected to have received high fat cat bonuses and by this damaged Mannesmann during the take-over by British Vodafone. Whereas the German Judges Association welcomed the decision, conservative leader Angela Merkel spoke of an “attack against German economy” (20.09.2003). Among the defendants is Deutsche Bank spokesman Josef Ackermann.

The Federal Supreme Court (BGH) ruled that the colour ‘magenta’ is part of the trademark of the Deutsche Telekom (04.09.2003). Competitor Mobilcom used the same colour in newspaper advertisement campaigns. The court stated that customers identify magenta-coloured advertisements with the Deutsche Telekom.

In spite of coming very close to the animal, the OLG Bamberg awarded a claimant who was kicked by a horse and fractured his leg compensation for personal injury and damages for non-pecuniary loss (10.09.2003). The court qualified this as a typical risk in the sense of § 833 BGB (strict liability for damages caused by animals). With a view to his lack of experience, coming too close to the horse was – on the other hand – not qualified as a case of gross negligence.

Secrete DNA-tests to determine fatherhood have become a highly disputed procedure. They have been approved by some courts, but rejected by others. The debate about tests without consent of the mother has shown that there is no political consensus either (August 2003).

Consumers using service numbers are entitled to receive information about the company offering those service numbers from the Telecommunication Regulation Office. A new law will also set up limits for service fees (August 2003).

Licenses that have been granted in licensee contracts from before 03.10.1990 and used the term “West Germany“ do not automatically give a right to the licensee to make use of the license in the area of the former GDR. This theory of continuously split licensee right areas has been established by the Supreme Court in December 2002 (July 2003).

The political opposition (CDU/CSU) suggested to modify the new § 444 BGB as far as it applies to company sales (23.06.2003). In the light of the considerable debate about the way the common practice of agreeing on a form of warranty could be interpreted in accordance with § 444 BGB, the conservative opposition parties suggests to change the rule in order to meet the needs of business.

The main criterion is a patient’s will, not medical necessity. Four years after the last major reform in German insolvency law, the Minister of Justice has publishing the report of a working group for further improvement. Revising the practice of liquidators, the relevant commission plans to make selling of parts of the bankrupt company less restrictive. The selection of liquidators also needs to become fairer for, inter alia, constitutional reasons. Finally, the scope of the consumer bankruptcy procedures should be widened, thus also applying to formerly self-employed persons. The consumer bankruptcy procedures in general are to be simplified. The minister has published this draft for discussion among the relevant groups (June 2003).

§ 52a of the new German copyright law (Urheberrechtsgesetz) allows teachers, professors and other scholars to copy and distribute scientific publications among their students, as print versions and electronically. This increases the digital distribution of scholarly publications. The reform follows the ideas of the US Digital Millennium Copyright Act. Because of the protests of several publishing companies, application of § 52a Urheberrechtsgesetz terminates in 2006 and will be revised according to the experience made (June 2003).

The repayment of a credit does not necessarily terminate an open credit contract. Termination depends not only on a certain time limit, but also on what the parties agreed on (BGH, 20.05.2003).

Consecutive misconduct over a certain time in the form of illegitimate statements during a criminal investigation may not only entitle to an injunction but also pecuniary compensation (LG Düsseldorf 30.04.2003).

Price information given by the producer of goods on the packaging are in accordance with competition law if they do not limit the free determination of prices by the seller (e.g., “3 for 2”). This ruling was handed down by the BGH on 8 April 2003.

The Federal Supreme Court has ruled that online reservation systems for scheduled flights which do not give the complete price in the first step of the reservation process are in accordance with the Pricing Order if the customer is advised about possible additional charges and fees (02.04.2003).

On 18 March 2003 the Bundesgerichtshof decided that an operation performed without the patient’s consent does not become legal if a medical reason can later be shown.