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
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
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
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
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
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
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
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
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
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.
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.
DNA-tests to determine fatherhood have become a highly disputed procedure.
They have been approved by some courts, but rejected by others. The debate
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
Office. A new law will also set up limits for service fees (August 2003).
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.
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