News and Press - Lawyers Attorneys Tax Advisors GRP Rainer Germany - Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart London UK https://www.grprainer.com/en/ News and Press releases of Lawyers Attorneys Tax Advisors GRP Rainer Germany Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart London UK en GRP-Rainer Tue, 22 May 2018 19:43:30 +0200 Tue, 22 May 2018 19:43:30 +0200 TYPO3 news-3191 Mon, 21 May 2018 06:40:52 +0200 General Data Protection Regulation (GDPR) must be implemented by May 25, 2018 https://www.grprainer.com/en/news-and-press/detail/news/general-data-protection-regulation-gdpr-must-be-implemented-by-may-25-2018.html Businesses need to keep May 25, 2018 in mind. This is the day when the EU General Data Protection Regulation, GDPR for short, officially comes into force.

Following a two-year transitional period, the GDPR will come into full force and effect on May 25, 2018, thereby replacing an EU directive dating back to 1995. The GDPR is meant to create a uniform standard for data protection within Europe and provide consumers with greater protection in the digital age. The GDPR shall have precedence over national law. Notwithstanding this, we at the commercial law firm GRP Rainer Rechtsanwälte note that the European Regulation leaves many details open and provides for a certain amount of leeway for national rules and regulations.

In principle, the GDRP applies to all businesses within the EU that gather, record and process personal data. It concerns not only customer or client data, but also data pertaining to company employees. Businesses will now be subject to extensive information and documentation obligations. The more sensitive the data collected is, the stricter the data protection rules are.

For businesses, the implementation of the GDPR means more stringent requirements relating to data protection compliance, especially considering that violations of the Regulation can be severely punished. Fines of up to 20 million euros or up to 4 per cent of worldwide annual turnover can be imposed. Moreover, violations of the GDPR may also be penalized as violations of competition law.

Businesses need to communicate what personal data is being gathered and for what purpose. Personal data refers to information such as name and address, contact details, birthday, IP addresses etc. In short, all data that is likely to allow a person to be identified. This data cannot be collected without consent and has to be processed for a specific purpose or purposes in a transparent and comprehensible manner. Additionally, those concerned have the “right to be forgotten”, i.e. the data must be deleted once the purpose has been achieved. To ensure that data is protected, appropriate technical precautions need to be taken.

The GDPR entails complex changes to data protection law which businesses and employers need to be prepared for. Should violations of the GDPR occur, one should also anticipate formal warnings. To prevent this from happening, it is necessary to obtain expert legal advice or even appoint an external data protection officer.

For more informations:

https://www.grprainer.com/en/legal-advice/it-law-and-media-law/data-protection.html

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DatenschutzPressemitteilungen
news-3187 Thu, 17 May 2018 07:19:59 +0200 CJEU on protected designations of origin https://www.grprainer.com/en/news-and-press/detail/news/cjeu-on-protected-designations-of-origin.html As in the case of brands, geographical designations of origin can be protected as well. It is therefore also possible for advertising featuring references to origin to be misleading to consumers and thus impermissible.

Brands and geographical designations of origin are of great value to businesses. They give rise to certain associations among consumers, e.g. in relation to the quality of a product. We at the commercial law firm GRP Rainer Rechtsanwälte note that for this reason the protection of brands and designations of origin is all the more important.

Having said that, a ruling of the Court of Justice of the European Union (CJEU) from December 20, 2017 demonstrates that the protection afforded to designations of origin can have its limits (Az.: C-393/16). The case before the CJEU concerned a legal dispute between a discount supermarket and an association of champagne producers. The discount supermarket offered ice cream under the name “Champagner Sorbet” (champagne sorbet). The association brought a legal action against this, arguing that it constituted a violation of the protected designation of origin (PDO) “champagne”.

The case ended up before the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, which in turn requested that the CJEU interpret EU legislation pertaining to the protection of registered designations of origin.

The CJEU held that a protected designation of origin has been exploited improperly if the intention behind using the designation is to unduly benefit from its reputation. According to the Court, the designation “Champagner Sorbet” was able to benefit from the prestige of the protected designation of origin “champagne” because consumers associate the latter with a certain class of goods and price range. Notwithstanding this, use of the designation was said not to be illegal if an essential quality of the product is its predominantly champagne flavour, a matter which the CJEU concluded was for the BGH to address.

However, unlawful use might have occurred in the case of a sorbet that, despite the impression given by references in its design or outer packaging, does not include a champagne flavour as one of its essential qualities. References of this kind could be deemed incorrect and misleading. The Court ruled that the protection afforded to registered designations of origin extends beyond the origin of the product in question to incorrect or misleading references pertaining to its nature or essential qualities.

Violations of trademark law or copyright law can be met with severe penalties. Lawyers who are experienced in the field of intellectual property law can advise businesses on enforcing or fending off claims.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

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MarkenrechtPressemitteilungen
news-3182 Fri, 11 May 2018 07:54:40 +0200 Antitrust law – DFB simplifies ticket allocation for 2018 World Cup https://www.grprainer.com/en/news-and-press/detail/news/antitrust-law-dfb-simplifies-ticket-allocation-for-2018-world-cup.html The way in which it has allocated tickets has led the DFB, Germany’s Football Association, to be suspected of abusing its dominant market position. The Bundeskartellamt, Germany’s Federal Cartel Office, has since suspended its investigations into the matter.

A lot of fans of the German national football team would like to watch the team’s games live in the stadium, but getting hold of the relevant tickets for the 2018 World Cup or the away matches during the qualification phase has proven extremely difficult because the DFB linked the allocation of the tickets to membership of the German national football team’s fan club. The annual fee for the membership was 40 euros.

A large number of complaints were made against this way of allocating tickets, and the Bundeskartellamt initiated administrative procedures against the DFB on suspicion of misuse of a dominant market position. The Bundeskartellamt has confirmed that the proceedings have since been suspended. Prior to this, the DFB had committed to easing the conditions for applying for tickets to the 2018 World Cup in Russia.

Following consultation with the Bundeskartellamt, it is now possible for fans to obtain significantly cheaper and temporary tournament membership for ten euros and apply for tickets. The background to the DFB’s decision to link ticket allocation to membership of the fan club was to thereby ensure greater safety in the stadia. This argument influenced the cartel watchdog’s decision.

We at the commercial law firm GRP Rainer Rechtsanwälte note that abusing a dominant market position can give rise severe penalties, as antitrust law is supposed to ensure there is diverse competition in the interests of consumer protection. Violations of antitrust law or competition law may therefore entail appropriate sanctions, which can in turn lead to costly and time-consuming legal disputes.

To avoid legal disputes arising from possible violations of competition law or antitrust law, lawyers who are experienced in the field of antitrust law ought to be consulted early on. They can assess whether there are concerns from the perspective of antitrust law and overcome potential problems. If specific accusations and claims have already been made due to alleged violations, experienced lawyers can assume responsibility for fending these off. Of course, the same is also true in the reverse case, i.e. if there is an intention to assert claims for violations of antitrust law.

For more informations:

https://www.grprainer.com/en/legal-advice/antitrust-law.html

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KartellrechtPressemitteilungen
news-3180 Thu, 10 May 2018 07:03:23 +0200 BGH – Bank must explain risk if interest rate dependent on exchange rate https://www.grprainer.com/en/news-and-press/detail/news/bgh-bank-must-explain-risk-if-interest-rate-dependent-on-exchange-rate.html If the interest rate on a loan is based on the development of exchange rates, the bank has a duty to inform with respect to the foreign exchange risk. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a recent ruling (XI ZR 152/17).

The appreciation of the Swiss franc against the euro has caused problems for a number of borrowers. Notwithstanding this, the relevant bank must explain the exchange rate risk present. We at the law firm GRP Rainer Rechtsanwälte note that according to a judgment of the Bundesgerichtshof from December 19, 2017, this duty to inform also applies if the interest rate on a loan is based on the exchange rate.

The instant case concerned a loan in the amount of approximately 3 million euros that had been taken out by a municipality in North Rhine-Westphalia. The interest rate for the first 20 years was supposed to be 3.99 per cent p.a. assuming an exchange rate from euros to Swiss francs equal to or greater than 1.43. In the event of the euro falling below this threshold, the interest rate would then be 3.99 per cent plus half of the change in the exchange rate from 1.43. During the consultation, the bank pointed out that the Swiss National Bank, Switzerland’s central bank, would adopt a zero interest rate policy in the event of the Swiss franc appreciating and that their threshold for intervention was 1 euro to 1.45 Swiss francs. Additionally, there was a table showing the respective interest rate for exchange rates ranging from 1.39 to 1.65. From a rate of 1.42 to 1.39, the interest rate increased incrementally from 4.34 to 5.43.

In the end, the franc appreciated so strongly that the municipality was supposed to pay an interest rate of 18.99 per cent p.a. It therefore considered the loan agreement to be unjust and void. Moreover, it claimed that the foreign exchange risk had not been properly explained. Despite the municipality’s claim being unsuccessful before the first two courts of instance, the BGH reached a different conclusion.

Although the loan agreement was not found to be unjust, the bank had failed to fulfil its duty to inform. While the dependent relationship between the interest rate and the exchange rate was said to be apparent from examining the agreement, the bank had not explained with sufficient clarity the risks associated with an obligation to make interest payments based on an exchange rate, but instead downplayed these. The court of appeal must now rule on the case anew.

When it comes to problems concerning loan agreements, lawyers who are experienced in the field of banking law can serve as competent advisors.

For more informations:

https://www.grprainer.com/en/legal-advice/banking-law.html

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BankrechtPressemitteilungen
news-3179 Wed, 09 May 2018 09:37:32 +0200 LAG Hamm: Fixed-term employment contract due to extra work must be properly justified https://www.grprainer.com/en/news-and-press/detail/news/lag-hamm-fixed-term-employment-contract-due-to-extra-work-must-be-properly-justified.html A temporary need for manpower can constitute an objective reason justifying a fixed-term employment contract, but this temporary need has to be properly justified.

It is even possible to have several consecutive fixed-term employment contracts if there is an objective reason justifying this. One example of an objective reason justifying a fixed term is if the employer only has a temporary need for extra manpower. Having said that, the employer has to properly make the case that this need is only temporary. We at the commercial law firm GRP Rainer Rechtsanwälte note that it must be possible to anticipate with sufficient certainty that there will be no further need for the extra manpower in question once the contract governing the temporary employment relationship has come to an end. A ruling of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] from July 6, 2017 shows that a fixed term may be invalid in the absence of this kind of prognosis (Az.: 17 Sa 172/17).

In the instant case, a university had concluded a fixed-term employment contract with an employee for a period of around two years due to an increased amount of student counselling work resulting from double the number of school leavers, with this increased workload not expected to continue after the expiry of the contract. The relevant employee assumed responsibility for other tasks in addition to student counselling, particularly in relation to study coordination.

She later applied to have her employment contract extended for an indefinite period of time, which the university rejected. She subsequently lodged a claim shortly before the fixed-term employment contract expired requesting that it be found that her employment relationship would not come to an end on account of the fixed term. The competent labour court ruled in her favour, and the claim was also successful before the LAG Hamm.

The LAG held that a fixed term in response to a temporary need for manpower presupposes that it be expected with sufficient certainty at the time of the contract’s conclusion that there will be no permanent need for this extra manpower after the contract has expired. The employer must present a prognosis to this end supported by concrete evidence. The Court found that this prognosis represents a component of the objective reason justifying the fixed term. On the other hand, it ruled that general uncertainty regarding a possible future job opportunity does not justify applying a fixed term. The university was found to have failed to demonstrate this, particularly as the employee had taken on other responsibilities as well.

All employment contracts, and not simply those with a fixed term, should always be prepared thoroughly and in detail. Employers can turn to lawyers who are experienced in the field of employment law.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3175 Fri, 04 May 2018 10:02:58 +0200 BAG: Employer not liable for harm caused by vaccine https://www.grprainer.com/en/news-and-press/detail/news/bag-employer-not-liable-for-harm-caused-by-vaccine.html Employers who have flu vaccines administered within their company are not liable for any harm that might occur as a result of the vaccine. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in a recent ruling.

During the winter, a lot of people get vaccinated against the flu. Of course, employers also have an interest in flu vaccination as a means of preventing an epidemic within their respective firms, which is why many employers offer employees the option of receiving workplace flu vaccinations. The workers are then able to decide for themselves whether or not they wish to accept this offer. We at the commercial law firm GRP Rainer Rechtsanwälte note that this is why said employers are not liable for any harm caused by the vaccine. This comes from a judgment of the Bundesarbeitsgericht from December 21, 2017 (Az.: 8 AZR 853/16).

In the instant case, a freelance company doctor had called for the employees of a cardiac center to receive flu vaccinations on clinic premises. The employer bore the costs associated with the vaccinations. One employee who responded to this call was an administrative member of staff who had no contact with the patients. She subsequently experienced various lasting impairments relating to her cervical spine, for which she blamed the vaccine. She claimed that while the vaccine had been correctly administered, she had not been properly informed about the risks associated with the flu vaccine. She went on to say that had she been properly informed, she would not have had the vaccine administered. She therefore raised an action for damages for pain and suffering on account of a failure to fulfil the relevant obligation to inform. However, the action was not directed at the doctor but rather the employer.

Like the courts of lower instance before it, the BAG dismissed the claim. It held that no treatment contract had come into existence between the employer and the plaintiff that would have given rise to a duty to inform on the part of the employer. The BAG also found that the existing employment relationship did not give rise to a duty to inform, noting that a treatment contract had only come into existence with the doctor.

When it comes to issues pertaining to the workplace, lawyers who are experienced in the field of employment law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3171 Mon, 30 Apr 2018 08:46:06 +0200 BAG: Threats made by employee can justify dismissal with immediate effect https://www.grprainer.com/en/news-and-press/detail/news/bag-threats-made-by-employee-can-justify-dismissal-with-immediate-effect.html Employers do not have to accept threats made by employees. These can constitute good cause justifying extraordinary notice of dismissal with immediate effect, as demonstrated by a ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court.

An employer can issue extraordinary notice terminating an employment contract with immediate effect if there is good cause rendering it unreasonable to continue the employment relationship. We at the commercial law firm GRP Rainer Rechtsanwälte note that one such example of good cause is a serious threat made by an employee. In its judgment of June 29, 2017, the Bundesarbeitsgericht found in this regard that a serious and freely made threat constitutes good cause justifying extraordinary notice of dismissal if the employee was trying to exert pressure on his or her employer in order to advance his or her own interests (Az.: 2 AZR 47/16).

In the instant case, the worker in question was employed as a road mender for one of Germany’s federal states. After falling ill multiple times and receiving in-patient psychosomatic treatment, he was laid off for being unfit to work as a road mender and ultimately treated in the same manner as a severely disabled person. During the course of the company’s reintegration program, the employee made statements that were perceived by the other participants in the discussion as threats to commit suicide or go on a shooting spree. In addition, the employee did not rule out the possibility of more sick leave, and he failed to distance himself from these remarks throughout the rest of the discussion. The employer subsequently issued the man with exceptional notice of dismissal with immediate effect.

His action for wrongful dismissal was unsuccessful. The BAG held that merely announcing future bouts of illness may be enough to justify dismissal with immediate effect if this indicates a readiness on the part of the employee to abuse his rights. The Court went on to say that the threats to commit suicide or go on a shooting spree could also justify dismissal with immediate effect, as this puts enormous pressure on the employer. The same was said to be true if the aim of the threats was to advance the employee’s own interests. The BAG noted that this kind of intention could even heighten the significance of the threat.

Whether in the final analysis the threats were made in earnest now needs to be re-examined by the Landesarbeitsgericht, i.e. the regional labour court. A threat was said to be serious if it is likely that a person with normal sensitivities would perceive it as such. The BAG ruled that whether the person who made the threats is able to or wants to make good on his statements is irrelevant.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3163 Thu, 19 Apr 2018 08:49:25 +0200 GRP Rainer Rechtsanwälte – New additions to commercial and company law team https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-new-additions-to-commercial-and-company-law-team.html We at the international commercial law firm GRP Rainer Rechtsanwälte have bolstered our team in order to make further improvements to the high-quality advice we provide to our growing clientele.

The trajectory at GRP Rainer Rechtsanwälte continues to be one of growth. Our commercial law firm’s objective is to closely collaborate with our clients both at home and abroad to provide interdisciplinary and comprehensive solutions. To meet our own high standards as well as, of course, the expectations of our clients and offer even better advisory services, attorneys Dr. Florian Wirkes and Dr. Hilmar Müller will now be joining our team of experienced lawyers. With these two new additions to our team, the range and depth of GRP Rainer Rechtsanwälte’s expertise continues to grow and puts us in a position to provide performance-based solutions even in the face of the most complex of demands.

Dr. Florian Wirkes, LL.M, first studied law at the Universität zu Köln in Cologne and later worked for, among others, a law firm in Bangkok. Following his traineeship, he went on to obtain a Masters in Wirtschaftsrecht (LL.M.), i.e. commercial law, from the Universität zu Köln, completed his doctorate in 2017 while working and has since joined GRP Rainer Rechtsanwälte.

Dr. Hilmar Müller studied law at the Universität zu Potsdam with a focus on commercial and company law. He completed his doctorate in the field of stock corporation law before working within the framework of his traineeship for, among others, a law firm in London. His main areas of practice were in the field of company law, in particular mergers and acquisitions (M&A) as well as commercial law in general.

Now with Dr. Florian Wirkes and Dr. Hilmar Müller on board, GRP Rainer Rechtsanwälte has once again expanded upon its extensive expertise in the areas of commercial, trade and company law. From our offices in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich Stuttgart, London and Singapore, we provide our clientele with excellent interdisciplinary legal advice and develop comprehensive solutions. In doing so, we continue on our path to become a consistently client-oriented service provider and competent consultant for national and international businesses, companies, institutional investors as well as private individuals.

For more informations:

https://www.grprainer.com/

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RechtsanwältePressemitteilungen
news-3161 Tue, 17 Apr 2018 08:22:44 +0200 Prohibition of competition – BGH bolsters commercial agents’ rights https://www.grprainer.com/en/news-and-press/detail/news/prohibition-of-competition-bgh-bolsters-commercial-agents-rights.html Commercial agency agreements often include a prohibition of competition, also known as a no-competition clause. Notwithstanding this, certain clauses in the general terms and conditions may be invalid, as is clear from a ruling of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court (Az.: VII ZR 100/15).

Companies frequently arrange a post-contractual prohibition of competition with their commercial agents, whereby the commercial agent commits not to entice any clients away from the company over a specified period of time after the agreement has been terminated. However, we at the commercial law firm GRP Rainer Rechtsanwälte note that these kinds of clauses in the general terms and conditions may be invalid if they’re not drafted in a sufficiently transparent manner. That was the verdict of the BGH.

In the instant case, the commercial agent had served as a financial advisor to a company. In September of 2011, the contractual relationship was brought to an end. It had been contractually agreed in the general terms and conditions that the financial advisor would not lure clients away from the company or attempt to do so for a period of two years following termination of the commercial agency relationship.

The company took the view that the financial advisor had violated this agreement, arguing that the latter had induced four clients to change or terminate their contracts during the term of the post-contractual prohibition of competition, or at least attempted to do so. The company raising the legal action therefore asserted claims against the financial advisor, but the action was unsuccessful even before the BGH.

The Karlsruhe judges held that the post-contractual prohibition of competition in the general terms and conditions had not been effectively agreed. The clause “Vermögensberater verpflichtet sich, es für die Dauer von zwei Jahren nach Beendigung des Handelsvertreterverhältnisses zu unterlassen, der Gesellschaft Kunden abzuwerben oder dies auch nur zu versuchen” (the commercial agent commits not to entice clients away from the company or even to attempt to do so for a period of two years following termination of the commercial agency agreement) was said to constitute a violation of the requirement for transparency and was thus invalid.

The Court held that the post-contractual prohibition of competition unquestionably represented one of the company’s general terms and conditions. The clause was said to violate the requirement for transparency because it failed to make sufficiently clear whether the prohibition of competition extended only to parties who were clients during the term of the agreement or whether it also covered parties who only became clients after the commercial agency agreement had been terminated. The Court therefore ruled that the scope of the prohibition of competition was unclear to the agent. As such, the BGH went on to conclude that it did not even need to be established whether the prohibition of competition was invalid due to the lack of a specific arrangements for parent leave compensation.

Lawyers who are experienced in the field of commercial law can advise companies and commercial agents alike.

For more informations:

https://www.grprainer.com/en/legal-advice/commercial-law/commercial-agency-law.html

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HandelsvertreterrechtPressemitteilungen
news-3155 Tue, 10 Apr 2018 11:22:30 +0200 OLG Düsseldorf – Deletions in a will need to be ambiguous https://www.grprainer.com/en/news-and-press/detail/news/olg-duesseldorf-deletions-in-a-will-need-to-be-ambiguous.html If a testator removes parts of his will, these deletions should demonstrably come from him. Otherwise, the deleted passages might still be effective.

A testator is free to amend his will. That being said, he ought to make sure that any changes made can be unequivocally attributed to him. In cases involving a handwritten will, the changes also need to be handwritten by the testator and preferably signed and dated. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that it may be a good idea to draw up a new will to ensure that the testamentary dispositions are effectively implemented.

The fact that subsequent amendments can be ineffective is demonstrated by a ruling of the Oberlandesgericht (OLG) Düsseldorf [Higher Regional Court of Düsseldorf] from September 29, 2017 (Az.: I-3 Wx 63/16). In the case in question, the testator had written a will with a black pen in which he designated friends and his partner as heirs. His appointment of friends as heirs was later crossed out with a blue pen.

Following the death of the testator, the friends he initially designated as heirs applied for a certificate of inheritance. However, the probate court dismissed the application because they had been crossed out as heirs. Moreover, it was established on the basis of an expert handwriting assessment that the testator had personally made the changes.

Notwithstanding this, the OLG Düsseldorf took a different view. It held that while the testator can make amendments to his will by crossing out passages with a view to nullifying them, it could not be proven with sufficient certainty in this particular case that the changes did in fact come from the testator as there was no witness who could confirm this. The mere fact that the testator stated that he wished to amend his will did not justify this conclusion. Furthermore, no new heir was appointed. The OLG ruled that even if the testator did personally cross out the passages, there was still doubt regarding his intent to nullify; this act might only have served as preparation for a new will.

To ensure that testamentary dispositions are actually capable of being implemented in accordance with the wishes of the testator, both the wording as well as any subsequent amendments in a will should always be unambiguous and attributable to the testator.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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Testament / ErbvertragPressemitteilungen
news-3151 Thu, 05 Apr 2018 08:10:34 +0200 BGH on compensation for bribes https://www.grprainer.com/en/news-and-press/detail/news/bgh-on-compensation-for-bribes.html Bribes are immoral and justify compensation claims for damages. These can be directed at recipients as well as those who initiated the bribes.

According to sec. 826 of the Bürgerliches Gesetzbuch (BGB), i.e. the German civil code, a person is obligated to pay damages if they deliberately cause harm to another in a way that offends public morality. This also includes agreements involving bribes. We at the commercial law firm GRP Rainer Rechtsanwälte note that these kinds of agreements are null and void. In its ruling of January 18, 2018, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, clarified that such cases give rise to damages claims in relation to not only bribed employees or others who have received payment indirectly but also the business associate initiating the bribe (Az.: I ZR 150/15).

If the plaintiff asserts a claim for damages on account of kickback arrangements made without his knowledge by an authorized representative, then he bears the burden of producing evidence. The BGH stated that this burden of proof is satisfied if the plaintiff can present sufficient evidence pointing to the conclusion of a bribery arrangement. The defendant contesting the kickback arrangement is then subject to the secondary burden of proof, i.e. he needs to demonstrate that there was no such arrangement.

In the instant case, the plaintiff dealt in furniture from Asia. She hired a forwarding company to transport furniture from Asia to Europe that later merged with her firm. The furniture dealer had authorized a since deceased man to take care of the day-to-day administration associated with the forwarding company. In this context, there were increases in the freight costs owed by a certain premium. The furniture dealer neither knew of this arrangement nor did she consent to it. The payments were supposed to ensure that the man in question would continue to take care of freight orders for the plaintiff. The then insolvent furniture dealer later demanded the premiums back.

The Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm] dismissed the claim, but this ruling was overturned again by the BGH. The latter held that the plaintiff had adduced sufficient evidence indicating a kickback arrangement. The defendant therefore bore the secondary burden of proof, which it satisfied. The defendant not only disputed the kickback arrangement, but also presented a different set of facts. It was said that after gathering evidence the decision was at the discretion of the trial judge. Said judge was found to have not sufficiently assessed all of the circumstances, with the result that the case was referred back to the OLG.

In cases involving bribes or other immoral acts causing harm, lawyers who are experienced in the field of industrial property rights can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/business-law.html

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PressemitteilungenWirtschaftsrecht
news-3148 Fri, 30 Mar 2018 09:12:08 +0200 LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements https://www.grprainer.com/en/news-and-press/detail/news/lag-hamm-dismissal-on-grounds-of-suspicion-must-comply-with-strict-requirements.html

If an employer wants to issue notice of dismissal on grounds of suspicion, the circumstances need to be sufficiently suspicious such that it is almost certain the employee in question committed the relevant offence.

For extraordinary notice of termination of an employment relationship to be effective, there needs to be good cause justifying this course of action. We at the commercial law firm GRP Rainer Rechtsanwälte note that suspicion an employee has committed a serious breach of duty can constitute good cause justifying extraordinary dismissal. Having said that, the circumstances need to be sufficiently suspicious such that it is virtually certain the employee is the perpetrator based on the objective evidence available. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] in its ruling of August 30, 2016 (Az.: 7 TaBV 45/16).

The case that came before the LAG Hamm concerned a particularly distasteful form of bullying. An employee at a senior citizens’ centre discovered a letter of condolence in her mailbox that included the handwritten comment “für Dich (Du bist die nächste)” [for you (you’re next)]. Upon learning of the incident, the employer attempted to identify the culprit responsible for the letter. To this end, it collected handwriting samples from those employees it considered might be responsible. Based on these handwriting samples, an expert concluded that it was “highly probable” the letter came from a longstanding employee. Notwithstanding this, the expert pointed out that beyond this there are also the categories of probability “very likely” “virtually certain”. Despite this, the employer still intended to issue the relevant employee with notice of extraordinary dismissal on grounds of suspicion.

However, neither the works council nor the labour court of first instance approved the employer’s grounds for suspicion. The LAG Hamm upheld the judgment of the court of first instance, ruling that a suspicion has to be strong and supported by concrete evidence; mere speculation does not constitute sufficient grounds for suspicion. The circumstances need to be sufficiently suspicious such that it is virtually certain that the employee is the perpetrator and other parties can be ruled out. But the Court held that this was not the case here, stating that the assessment “highly probable” is not enough and not a clear result, especially considering that further enquiries could have been made, e.g. collecting handwriting samples from all employees.

Extraordinary notice of dismissal, particularly on grounds of suspicion, should always be thoroughly prepared. Lawyers who are experienced in the field of employment law can offer advice.

For more informations:

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ArbeitsrechtPressemitteilungen
news-3142 Mon, 26 Mar 2018 08:41:57 +0200 GRP Rainer Rechtsanwälte – Report on the distinctiveness of a trade mark https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-the-distinctiveness-of-a-trade-mark.html

In order to be able to register a company symbol or logo as a trade mark, it needs to have the necessary distinctive character to distinguish it from the products and services of other businesses.

Trade marks are a valuable commodity for businesses. They create a high degree of brand recognition among consumers and distinguish from competitors’ goods and services. Once it has been registered as a trade mark, the company symbol or logo is protected and can then only be used by the trade mark’s proprietor. In general, marks that are capable of distinguishing one’s own goods and services from the products of other providers can be registered as a trade mark. In our experience at the commercial law firm GRP Rainer Rechtsanwälte, trade mark registrations are most likely to fail because attention is not paid to absolute grounds for refusal that preclude registration as a trade mark.

One such absolute ground for refusal is a lack of distinctiveness. A mark’s distinctiveness should place consumers in a position to be able to associate the origin of goods or services with a particular business and distinguish them from other providers’ products. If a mark consists of several elements, the distinctive character must apply to the mark as a whole. The average reasonably well-informed and circumspect consumer cannot be expected to analyze the mark. Purely descriptive information can also constitute an absolute ground for refusal, as there is a public interest against exclusive use in these circumstances. This may be the case, for example, with respect to descriptive terms such as “vegetarian” or “vegan”.

Another criterium is that the mark be capable of being represented as a graphic. In the case of word marks or figurative marks, this is normally not a problem. That being said, this requirement also applies, for instance, to sound marks. It may, however, be possible for the mark to be represented by the notes in these cases.

Furthermore, any rights associated with existing trade marks cannot be infringed, nor can consumers be misled.

Company symbols or logos that satisfy these requirements can be registered as a trade mark, e.g. as a word mark, figurative mark, sound mark, colour mark, 3D mark or a combination of the above.

We at the commercial law firm GRP Rainer Rechtsanwälte have a great deal of experience in the field of trade mark law and can assess whether registering a mark is possible. We can equally be of assistance in enforcing or fending off claims in the event of trade mark violations.

For more informations:

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MarkenrechtPressemitteilungen
news-3138 Tue, 20 Mar 2018 08:36:23 +0100 GRP Rainer Rechtsanwälte – Experience drafting valid wills https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-drafting-valid-wills.html

Anyone who wants their estate to be organized in accordance with their wishes prepares a will. However, there are many pitfalls that can result in the will being ineffective.

If the testator fails to leave behind any testamentary disposition then the rules of intestate succession apply. Those who want their estate to be distributed differently from what the rules of intestate succession allow for should prepare a will or contract of inheritance. Despite this, it is still possible for disputes to emerge among the heirs concerning the validity of the will, which is why one ought to make sure when preparing the testamentary disposition that it is clearly and unambiguously worded to ensure that the final will is actually capable of being implemented in accordance with the wishes of the testator. We at the law firm GRP Rainer Rechtsanwälte have the necessary experience to exclude the possibility of potential mistakes in relation to a will and draw it up in such a way that it is effective.

The will can either be handwritten or drafted by a notary. While the formal requirements pertaining to a handwritten will are not substantial, one ought to nonetheless be mindful of a few basic things. For instance, a will should always have a heading which clearly indicates that this is the testator’s final will. It is also important to include a handwritten signature together with the relevant date and location. Furthermore, the entire text needs to be handwritten by the testator.

The testator can lay out who shall inherit as well as those who will be excluded from the inheritance. Notwithstanding this, any claims to the compulsory portion, e.g. from the spouse or children, have to be taken into account. The circumstances pursuant to which divestiture of the compulsory portion is possible are very limited.

It is possible to make amendments or additions to the will. It must be readily apparent that these stem from the testator. The safer option is to prepare a new will that automatically supersedes the old one. The date should always be specified to avoid disputes regarding which will is valid.

In the case of so-called “Berliner Testaments” (Berlin wills) or joint spousal wills, on the other hand, making unilateral changes is not as easy because of their provisions’ strong binding effect. This should always be borne in mind in relation to a Berliner Testament.

The wording should always be unambiguous. For example, it is necessary to distinguish between an heir and a legacy. Only the heir becomes the testator’s legal successor with all of the associated rights and obligations.

Lawyers who are experienced in the field of succession law can advise on matters pertaining to wills and contracts of inheritance.

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Testament / ErbvertragPressemitteilungen
news-3135 Fri, 16 Mar 2018 08:13:00 +0100 GRP Rainer Rechtsanwälte – Evaluating a trade mark’s distinctiveness https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-evaluating-a-trade-marks-distinctiveness.html Before a mark can be registered as a trade mark, it needs to be assessed whether it possesses the necessary distinctiveness vis-à-vis other vendors’ products and services.

Trade marks give rise to a high degree of brand recognition among consumers and are of great value to businesses. It therefore makes sense to have a mark registered with the Deutsches Patent- und Markenamt (DPMA), the German Patent and Trade Mark Office. This will protect the mark from being used by other businesses. We at the commercial law firm GRP Rainer Rechtsanwälte note that should trade mark rights be infringed, it is possible to take legal action against this.

Before being registered, it should first be assessed whether the mark actually meets the conditions required for it be registered as a trade mark. To this end, a number of criteria needs to be fulfilled. For instance, the mark needs to possess the necessary distinctiveness vis-à-vis other vendors’ products and services. The mark cannot be registered as a trade mark if it lacks this distinctive character. Moreover, the mark cannot fulfil a merely descriptive function in relation to the goods or services. For this reason, the DPMA checks before a mark is registered whether registration is precluded by a so-called absolute ground for refusal.

However, it is worth noting that it is not assessed whether another mark with the same or at least a similar form has already been registered, which is why it ought to be looked into prior to commencing registration whether registration would infringe the rights of an existing trade mark. The proprietor of the older trade mark is then able to object to the registration, with this potentially giving rise to formal warnings, injunction suits or claims for damages.

That is why it should always first be assessed whether there is an absolute ground for refusal precluding the mark’s registration as a trade mark and whether existing trade mark rights would be infringed. If this is not the case, marks consisting of words, numbers, colours or images can be registered as trade marks provided that they fulfil the necessary requirements. The same applies to auditory/sound marks.

Lawyers who are experienced in the field of intellectual property law can serve as competent advisors when it comes to registering and protecting a trade mark as well as asserting claims in response to trade mark violations.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

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MarkenrechtPressemitteilungen
news-3128 Thu, 08 Mar 2018 08:36:22 +0100 LAG Rheinland-Pfalz: Employee needs to have good cause for termination with immediate effect https://www.grprainer.com/en/news-and-press/detail/news/lag-rheinland-pfalz-employee-needs-to-have-good-cause-for-termination-with-immediate-effect.html For termination of an employment relationship with immediate effect to be effective, there needs to be good cause. This is true whether notice of dismissal is issued by the employer or the employee.

Exceptional notice terminating an employment relationship with immediate effect is only possible if there is good cause. We at the commercial law firm GRP Rainer Rechtsanwälte note that the grounds need to be of such significance that it would not be reasonable to expect the contractual partner to continue the employment relationship even until the end of the notice period. This principle applies to both contractual parties, i.e. both the employer as well as the employee.

The fact that an employer does not have to accept an employee’s notice of termination with immediate effect is demonstrated by a ruling of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] from April 19, 2017 (Az.: 4 Sa 307/16). In the instant case, a trainee had given notice of termination with immediate effect and wished to continue his training at another establishment. His request prior to this to have his training contract rescinded had been rejected by the employer.

The trainee justified the notice of termination with immediate effect by arguing that he had repeatedly received negative comments from his tutor in relation to his work and that he had been bullied. It was claimed that comments such as “stell Dich nicht dümmer als Du bist” (don’t act more stupid than you are) were made. The employer was said to have been informed of this. Neither the respective labour court nor the LAG Rheinland-Pfalz considered this as constituting good cause justifying termination with immediate effect.

The LAG held that blanked statements are not enough; notice of termination with immediate effect must be made in writing and specify the grounds for termination. It went on to say that the grounds need to be precise and not expressed generally or as slogans. The Court ruled that while statements such as “stell Dich nicht dümmer als Du bist” are neither desirable nor beneficial, they do not amount to insults. As such, they ought to have been tolerated by the trainee and there was thus a lack of good cause.

Moreover, the employee should have issued a formal written warning prior to notice of dismissal so that the employer had the opportunity to put a stop to these disruptions to the employment relationship.

Termination of an employment relationship is a common source of contention. Lawyers who are experienced in the field of employment law can advise on all of the relevant legal aspects.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3123 Fri, 02 Mar 2018 08:48:06 +0100 Dismissal with immediate effect for sending business documents to personal email address effective https://www.grprainer.com/en/news-and-press/detail/news/dismissal-with-immediate-effect-for-sending-business-documents-to-personal-email-address-effective.html Anyone sending business documents to his or her personal email address should expect to be dismissed with immediate effect. This comes from a ruling of the Landesarbeitsgericht (LAG) Berlin-Brandenburg [Regional Labour Court of Berlin-Brandenburg] from May 16, 2017.

An employer can terminate an employment relationship without notice if it has good cause to do so. We at the commercial law firm GRP Rainer Rechtsanwälte note that one serious ground which can justify exceptional notice of dismissal with immediate effect is sending business documents to one’s personal email address. That was the verdict of the LAG Berlin-Brandenburg (Az.: 7 Sa 38/17).

In the case in question, the employer had issued an employee with exceptional notice of dismissal with immediate effect. The employee had received a contractual offer from a competing business. Several weeks before his employment began, he started sending business documents relating to clients and projects to his personal email address. He subsequently received notice of immediate dismissal and, in the alternative, ordinary notice of dismissal. The parties argued about the effectiveness of the notice of dismissal with immediate effect as well as the employee’s claim for payment of two months’ outstanding wages.

The LAG held that the notice of dismissal with immediate effect had been issued effectively. In addition to breaching the principal obligations under the relevant employment contract, the Court ruled that breaching secondary obligations can also constitute good cause justifying dismissal with immediate effect, as the parties to an employment contract are obligated to mutually respect the rights, legal interests and other interests of their contractual partner. That is why the LAG concluded that the employee ought not to have taken possession of the business documents and information and reproduced these for non-business purposes, thereby committing a serious breach of his duty of respect.

The Court took the view that the employee had sent the business documents to his personal email address in order to prepare for his work with the new employer. The LAG found that this had neither occurred with the consent of the employer nor was it covered by provisions in the employment contract. It went on to say that this represented a serious breach of contract that also constituted serious grounds justifying exceptional notice of dismissal, it being no longer reasonable to expect the employer to continue the employment relationship until the end of the ordinary notice period.

Whether exceptional notice of dismissal is effective or not is always decided on a case-by-case basis. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissals as well as in relation to other employment issues.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3121 Thu, 01 Mar 2018 08:25:09 +0100 Rescinding acceptance of an inheritance on account of an error https://www.grprainer.com/en/news-and-press/detail/news/rescinding-acceptance-of-an-inheritance-on-account-of-an-error.html It is only possible to rescind acceptance of an inheritance on account of an error concerning the estate’s over-indebtedness if the heir assumed that the estate was of value.

An inheritance can be rejected. This has to happen within a period of six weeks, with this period starting from when the heir becomes aware of his status as an heir. We at the commercial law firm GRP Rainer Rechtsanwälte note that if the inheritance has been accepted, the acceptance can be rescinded if the heir was mistaken about the value of the estate. Notwithstanding this, it is not sufficient for the purposes of rescission if the heir was aware that the estate could have been insolvent. That was the verdict of the Oberlandesgericht (OLG) Schleswig [Higher Regional Court of Schleswig] in its ruling of July 31, 2015 (Az.: 3 Wx 120/14).

In the instant case, the son had accepted the inheritance following the death of his mother. He had not been aware of the exact value of the estate. Nonetheless, he assumed that on balance it would probably be nil. Yet it became clear to him after examining the testatrix’s bank records that he had been mistaken and declared around three month following his mother’s death that he was rescinding his acceptance of the inheritance. In justifying this course of action, he stated that he had not been aware of the estate’s over-indebtedness. He had received the certificate of inheritance approx. four weeks prior to this.

The OLG Schleswig-Holstein held that the heir could not rescind acceptance of the inheritance due to an error relating to the estate’s over-indebtedness, as this kind of error presupposes that the heir assumed the estate was of value. But in the case in question, the heir was found to have been very much aware of the possibility that the estate might be insolvent.

However, the heir had proceeded on the assumption that the six-week period in which the inheritance could be rejected did not commence until the certificate of inheritance had been received. According to the OLG Schleswig, this represented a substantial error regarding the legal consequences of his conduct. For this reason, he was ultimately still able to rescind his acceptance of the inheritance, even though this really ought to be an exception to the rule.

Lawyers who are experienced in the field of succession law can advise testators and heirs on matters pertaining to estates.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession.html

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ErbrechtPressemitteilungen
news-3117 Mon, 26 Feb 2018 08:17:18 +0100 OLG Bremen: Right reserved in a joint will to make amendments can be restricted https://www.grprainer.com/en/news-and-press/detail/news/olg-bremen-right-reserved-in-a-joint-will-to-make-amendments-can-be-restricted.html The right reserved in a joint will to make amendments can be made conditional on the approval of a third party. That was the verdict of the Oberlandesgericht (OLG) Bremen [Higher Regional Court of Bremen].

To provide the surviving spouse with financial security, spouses often draw up a joint will mutually appointing each other as sole heirs and usually their children as final heirs. We at the commercial law firm GRP Rainer Rechtsanwälte note that the joint provisions have a strong binding effect and cannot be unilaterally amended. Notwithstanding this, the surviving spouse can be granted the right to make amendments. On the other hand, a ruling of the Oberlandesgericht Bremen from August 30, 2017 shows that it is possible to restrict this right (Az.: 5 W 27/16).

In the case in question, a married couple had prepared a joint will and mutually appointed each other as sole heirs, with the children and grandchildren being designated as the final heirs. The surviving spouse was granted a right to make amendments pursuant to which he or she was allowed to make changes to all aspects of the will as well as establish new testamentary provisions. This right was restricted in that amendments could only be made if approved by the executor. After the wife had passed away, her husband prepared a notarized individual will that deviated from the joint will. For example, it appointed one of his daughters as a revisionary heir of the other children. He did not, however, coordinate this change with the executor.

A dispute subsequently emerged following the testator’s death. The daughter who according to the individual will was then only to become a revisionary heir demanded that the certificate of inheritance be revoked, arguing that her father’s individual will was invalid because the amendments had not been arranged together with the executor as required by the joint will. The OLG Bremen ruled in her favour, concluding that the individual will was invalid because the changes ought not to have been made without the executor’s approval.

The OLG clarified that a right reserved in a joint will to make amendments can be made conditional on the approval of a third party, as it was said to be possible to apply arbitrary restrictions to the right to alter joint provisions.

To avoid disputes among heirs, the provisions in a will or contract of inheritance should always be clearly worded. Lawyers who are experienced in the field of succession law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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Testament / ErbvertragPressemitteilungen
news-3112 Tue, 20 Feb 2018 08:04:40 +0100 Employer’s right to give instructions regarding business trips abroad https://www.grprainer.com/en/news-and-press/detail/news/employers-right-to-give-instructions-regarding-business-trips-abroad.html An employer’s executive prerogative entails being able to order business trips abroad if the employee commits himself to undertake this kind of service in his or her employment contract. That was the verdict of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg].

In many industries, business trips come with the territory for a lot of employees. In the wake of globalization, business trips no longer mean simply travelling within Germany or to neighbouring countries but also further afield to countries such as China. We at the law firm GRP Rainer Rechtsanwälte note that according to a ruling of the LAG Baden-Württemberg from September 6, 2017 (Az.: 4 Sa 3/17)), an employer is able to order these kinds of business trips by virtue of its executive prerogative if the “versprochene Dienste”, i.e. the promised services, set out in the employment contract pursuant to sec. 611 para. 1 of the Bürgerliches Gesetzbuch (BGB) [Germany’s Civil Code] can naturally be associated with occasional foreign assignments.

The case before the LAG concerned an engineer who had been employed for about 30 years at a machine manufacturer and was rarely sent on business trips, and on those rare occasions only to countries nearby. However, he was then made to travel to China. From the employee’s point of view, the hotel, service and location of the accommodation left much to be desired. He viewed the trip as a form of victimization by his employer and brought a legal action to prevent his employer from being allowed to send him on business trips abroad, at least not to distant countries.

The LAG dismissed the claim, stating that although an employee need not accept intolerable accommodation while abroad, he can be sent on business trips. Moreover, the employer can set out in more detail the working hours, places of work and what the work entails as it reasonably sees fit as long as no contractual or collectively agreed provisions preclude this. The Court held that in this case the employer’s right to issue instructions in relation to the place of work was not limited by the employment contract due to the lack of a clear provision on this issue. The fact that the work owed by the engineer was not limited to a single location was said to be evident from a provision in the employment contract concerning compensation for travel expenses. The LAG went on to say that this kind of arrangement made no sense in the absence of an obligation to go on business trips, and gave leave to appeal.

When it comes to matters pertaining to the workplace or drafting employment contracts, lawyers who are experienced in the field of employment law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3108 Thu, 15 Feb 2018 08:35:11 +0100 Managers‘ risk of liability and D&O insurance https://www.grprainer.com/en/news-and-press/detail/news/managers-risk-of-liability-and-do-insurance.html Mistakes made by managers can prove costly both for the company as well as the managers themselves. For this reason, many companies take out D&O insurance policies for their executive personnel.

The executives in a company not only bear considerable responsibility, they can also be held accountable for the mistakes they make and held liable with their private assets. An increasing number of businesses have therefore begun taking out D&O insurance or management liability insurance for their governing entities. The business can benefit from this as well if it personally asserts claims against its executive personnel and the D&O insurance needs to kick in.

The Volkswagen emissions scandal made and still continues to make headlines. Yet matters pertaining to managerial liability are not always sensational cases plastered across all of the media. In insolvency cases, for instance, the company in question or its governing entities may be faced with claims brought by the insolvency administrator. Here, it normally pays off to have concluded a D&O insurance policy, which is why liability insurance for managers has long since ceased to be an issue that only concerns large corporations and is now of interest to a lot medium-sized companies.

There are, of course, also instances where a claim arises but the insurer does not wish to step in. We at the commercial law firm GRP Rainer Rechtsanwälte note, therefore, that one needs to closely examine which circumstances are covered by the insurance when taking out the policy. That is why the individual risk potential ought to be analysed carefully and the policy tailored to specific needs.

Obviously, it is absolutely crucial to consider the insured sum under the policy. It is equally important that claims arising both from internal liability, i.e. claims brought by the company against its executive personnel, and external liability in cases involving claims brought by third parties be covered.

Other essential aspects include retroactive coverage as well as coverage for follow-up liability. In the case of retroactive coverage, the insurer also commits to stand good for circumstances that took place prior to the conclusion of the policy but that were not discovered until later on. With respect to follow-up liability, insurance coverage will also be provided in the event that a claim arises during the term of the policy that is not discovered until afterwards.

All in all, there are a lot of details that one needs to be mindful of when taking out D&O insurance. Lawyers who are experienced in the field of company law can advise businesses and their managers.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law/do-insurance.html

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D&O-VersicherungPressemitteilungen
news-3101 Fri, 09 Feb 2018 07:59:06 +0100 No registration of “Bester Papa” as EU trade mark due to lack of distinctiveness https://www.grprainer.com/en/news-and-press/detail/news/no-registration-of-bester-papa-as-eu-trade-mark-due-to-lack-of-distinctiveness.html In order for a trade mark to be capable of being registered as a European Union trade mark it needs to be highly distinctive. The slogan “Bester Papa” (“Best dad(dy)/papa”) lacks this distinctive character.

The protection afforded by a trade mark is vitally important to businesses. Among consumers, trade marks give rise to a high level of brand recognition. Registering a trade mark also affords protection from competitors who would otherwise be able to benefit from its success. That being said, not every mark can be registered as a trade mark. We at the commercial law firm GRP Rainer Rechtsanwälte note that registration requires a highly distinctive character. That is why, for instance, the General Court of the European Union rejected the registration of the mark “Bester Papa” as an EU trade mark in its judgment of September 15, 2017 (Az.: T-451/16).

Cups, t-shirts etc. with the inscription “Bester Papa” or “Beste Oma” (“Best grandma/granny”) are very popular as gifts or tokens of recognition. For this reason, one company wanted to register the word mark “Bester Papa” as an EU trade mark. However, the European Union Intellectual Property Office (EUIPO) completely rejected its registration. In justifying its decision, it stated that the mark lacked the necessary distinctive character, and that consumers would consider the two words commonplace and merely a promotional message. It went on to say that no part of the mark was capable of being interpreted by consumers as an indication of the goods’ commercial origin.

The company was unsuccessful in bringing a legal challenge against this decision. The General Court shared the view of the EUIPO. The mark was said to be a classic slogan expressing praise and personal affection. The Court held that this combination of words is a commonplace expression that is familiar to consumers in a number of contexts. It ruled that there is no need for several associated logical steps in order to understand the mark as an expression of personal affection. The Court noted that the goods are, after all, suitable as gifts, and that this combination of words is perceived by the relevant public as nothing more than a promotional slogan. The General Court concluded that there was a lack of distinctiveness distinguishing the goods from products of other producers. Due to this lack of distinctive character, it was not possible to register the mark as an EU trade mark.

Lawyers who are experienced in the field of intellectual property law can advise businesses on registering trade marks as well as enforcing claims in the event of trade mark violations.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

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MarkenrechtPressemitteilungen
news-3094 Thu, 01 Feb 2018 08:44:48 +0100 BGH: A square shape can also be protected as a trademark https://www.grprainer.com/en/news-and-press/detail/news/bgh-a-square-shape-can-also-be-protected-as-a-trademark.html Three-dimensional symbols that represent the shape of a product can be protected as a trademark. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in two rulings from October 18, 2017 (Az.: I ZB 3/17 and I ZB 4/17).

We at the commercial law firm GRP Rainer Rechtsanwälte note that the three-dimensional shape of a product is capable of being protected as a trademark pursuant to trademark law if the shape is not required exclusively for the purposes of producing a technical effect.

A chocolate manufacturer and a dextrose manufacturer had their three-dimensional symbols registered as trademarks. Competitors of theirs did not want to leave it at that and instead filed an application for cancellation of the trademarks. The dispute ultimately came before the Bundesgerichtshof.

Prior to this, the Bundespatentgericht, Germany’s Federal Patent Court, had ordered that both trademarks be cancelled, it having recognized only technical functions in all of the essential characteristics of the shapes of the products shown in the trademarks. However, the BGH overturned the rulings and referred the cases back to the Bundespatentgericht. It was said that the only symbols that should be excluded from trademark protection are those which consist solely of a shape that is required for the purposes of producing a technical effect. According to the 1st Civil Panel of the BGH, competent to hear cases pertaining to trademark law, among other things, this was neither the case in relation to the chocolate nor the dextrose.

In the case of the dextrose, the Panel held that the specially shaped rough edges of the tablets do not have a technical function but are instead meant to make consumption more pleasant for consumers. This was said to have a sensory effect. The Court went on to say that in the case of the chocolate there was also no essential functional characteristic associated with its square shape. It is possible for even three-dimensional symbols, including the shape of a product, to be admitted as trademarks if they are capable of distinguishing goods and services from one company from the products of another company.

The Bundespatentgericht will now have to rule on whether there are other grounds excluding trademark protection for both of the products.

Trademarks are an asset of significant value to businesses that ought to be protected. However, for this to happen it needs to be assessed whether the conditions for registering a symbol as a trademark are fulfilled. Moreover, rights pertaining to existing trademarks cannot be infringed. Lawyers who are experienced in the field of intellectual property law can advise on all issues relating to registering a trademark and trademark protection.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

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MarkenrechtPressemitteilungen
news-3092 Wed, 31 Jan 2018 08:19:55 +0100 Truck cartel – Damages claims against Scania now also a possibility https://www.grprainer.com/en/news-and-press/detail/news/truck-cartel-damages-claims-against-scania-now-also-a-possibility.html Last summer, the European Commission imposed heavy fines on five truck manufacturers for violations of antirust law. The Swedish truck manufacturer Scania is now being asked to pay up as well.

The so-called “truck cartel” made headlines last summer. The European Commission had imposed fines totaling just under 2.9 million euros against the manufacturers MAN, Daimler, DAF, Iveco and Volvo/Renault for entering into illegal arrangements. Scania did not participate in the settlement and disputed the antirust accusations. Consequently, the European Commission continued its investigations in relation to Scania. The result: The Commission announced on September 27, 2017 that the truck manufacturer must now pay a fine of around 880 million euros for violating EU antitrust rules.

The cartel members had entered into illegal arrangements between 1997 and 2011. The Commission has since concluded that Scania was also involved in these arrangements over a period of 14 years. These concerned, in particular, agreements pertaining to the gross list price for medium and heavy-duty trucks, concerning the timetable for the introduction of technologies designed to lower emissions as well as passing on these costs to customers. The cartel covered the entirety of the European Economic Area (EEA).

Now that the Commission’s investigations have come to an end, all those who were harmed by the cartel, private individuals and businesses alike, are now able to assert damages claims against the cartel members. We at the commercial law firm GRP Rainer Rechtsanwälte note that the aggrieved parties are expected to have paid inflated prices between 1997 and 2011 for trucks that were approximately 10 to 20 per cent higher in price than they ought to have been, irrespective of whether they were purchased or leased. The advantage of this is that it is no longer necessary to prove unlawful conduct on the part of the cartel members, and this paves the way for damages claims. It is worth noting here that the extent of any harm caused may substantially exceed the fines. Those concerned can turn to lawyers who are experienced in the field of antitrust law to enforce and protect their interests.

Many businesses have suffered considerable harm resulting from these illegal cartel arrangements. It is now possible to obtain compensation for this financial loss and in so doing potentially preserve businesses’ competitiveness.

For more informations:

https://www.grprainer.com/en/legal-advice/antitrust-law.html

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KartellrechtPressemitteilungen
news-3089 Mon, 29 Jan 2018 08:30:39 +0100 Wallpaper cartel – Heavy fines for illegal price fixing https://www.grprainer.com/en/news-and-press/detail/news/wallpaper-cartel-heavy-fines-for-illegal-price-fixing.html In its ruling of October 12, 2017, the Oberlandesgericht (OLG) Düsseldorf [Higher Regional Court of Düsseldorf] imposed fines totalling more than 19 million euros against members of the so-called Tapeten-Kartell, or “wallpaper cartel” (Az.: V-2 Kart 1-3/17).

The 2nd Cartel Division of the OLG Düsseldorf came to the conclusions after 20 days of the trail that the cartel members had entered into illegal price-fixing agreements. According to the Court, the cartelists had agreed to a price increase for wallpaper in Germany to the tune of between 5 and 6 per cent in 2005. The 2nd Division noted that one of the carpet manufacturers as the market leader played a prominent role in this. A further anti-competitive arrangement in 2008 was said to have led to another price increase of about 5 per cent in the German market.

By imposing fines of around 19 million euros in total, the OLG Düsseldorf has in part gone substantially beyond the fines imposed by the Bundeskartellamt, Germany’s Federal Cartel Office. Key to this was the 2nd Division taking the global turnover of the companies in question as its basis. The Bundeskartellamt had already imposed fines in 2014 in the amount of approximately 17 million euros for illegal price-fixing arrangements. Two of the carpet manufacturers then lodged an appeal against this decision at the OLG Düsseldorf, but to no avail. Having said that, the OLG Düsseldorf’s ruling is not yet final.

We at the law firm GRP Rainer Rechtsanwälte note that the carpet manufacturers concerned are not yet able to put the matter to rest, as they might still be faced with damages claims brought by large clients who were harmed by the illegal price-fixing agreements. Lawyers who are experienced in the field of antitrust law can assess whether damages claims are justified and enforceable.

Anti-competitive price-fixing arrangements are a clear violation of antitrust law. That being said, it is possible for violations to occur quite unwittingly and despite this be harshly punished. Even minor details in contractual clauses, for instance, can give rise to violations of antitrust law. For this reason, it is advisable to have agreements reviewed by experienced lawyers with a view to concerns from the perspective of antitrust law.

For more informations:

https://www.grprainer.com/en/legal-advice/antitrust-law.html

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PressemitteilungenKartellrecht
news-3086 Wed, 24 Jan 2018 08:36:07 +0100 GRP Rainer Rechtsanwälte – Experience with D&O insurance https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-with-do-insurance.html Taking out a D&O insurance policy is supposed to reduce executives’ risk of liability. Experience shows that it is crucial to pay attention to details when taking out a policy.

Mistakes made by a company’s executive bodies can have serious consequences for the entire business. Managers bear an extremely high level of responsibility for the company they work for and its staff. In addition to this responsibility, executive bodies are also subject to a high risk of personal liability. A lot of companies take out a D&O insurance policy for their executive staff as a way of reducing this risk. If an event covered by the insurance policy occurs, it is nonetheless possible for a dispute with the insurer to emerge if it does not wish to stand good for the loss. Experience shows that the policy ought to be tailored to the individual liability risks faced by a given manager. We at the commercial law firm GRP Rainer Rechtsanwälte note that this is the best way to prevent a legal dispute with the D&O insurance company.

The executive organs attend to different tasks within a company. The more varied these tasks are, the more nuanced the D&O insurance policy should be drafted to ensure optimal coverage of the various liability risks.

Even careless mistakes can give rise to substantial consequences for managers and trigger internal as well as external personal liability. Accordingly, a D&O insurance policy should always cover the risk of both internal and external liability. The coverage agreed, i.e. the insured amount, is, of course, also a matter of vital important.

It is equally important to consider aspects pertaining to coverage of retroactive and follow-up liability alike. In the case of retroactive coverage, the insurer commits to step in even in liability cases that have arisen before the D&O insurance policy was concluded but only came to light afterwards. By contrast, the insurer assumes follow-up liability in liability cases that arose during the term of the policy but were only discovered later on.

Even if the D&O insurance policy covers the key liability risks, it is still always possible in an emergency that the insurer will not want to assume liability in the event of a claim. Lawyers who are experienced in the field of company law can advise companies when taking out a D&O insurance policy and enforce claims against the insurance company.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law/do-insurance.html

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D&O-VersicherungPressemitteilungen
news-3084 Tue, 23 Jan 2018 08:34:04 +0100 GRP Rainer Rechtsanwälte – Report on GmbH managing director’s obligation to contribute to social security https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-gmbh-managing-directors-obligation-to-contribute-to-social-sec.html Whether the managing director of a GmbH, a type of German private limited liability company, is obligated to make contributions to social security is frequently a point of contention. Various different factors need to be considered when weighing things up.

According to a report by the commercial law firm GRP Rainer Rechtsanwälte, a lack of awareness regarding a managing director’s obligation to contribute to social security is particularly liable to give rise to problems when a GmbH is being established. If the managing director is obliged to make contributions to social security but no contributions are made, we at GRP Rainer Rechtsanwälte note that there is then the possibility of having to make large back payments which have the potential to threaten a young company’s existence.

The obligation to contribute to social security encompasses contributions to unemployment, pension, health and nursing care insurance as well as accident insurance. Whether a managing director is obliged to make contributions depends on whether he is employed or self-employed.

Externally hired managing directors are employees in most cases. The usual criteria for a dependent employment relationship is that the individual in question be integrated into the external company and that the employer have the authority to give instructions in relation to the place of work, working hours and the type of work to be performed.

It is more difficult to make a distinction in cases involving managing directors who are also shareholders. In these instances, it needs to be examined whether the managing director is in fact carrying out his work independently. Key factors in determining whether this is the case is whether a personal business risk has been entered into and the share in the company’s capital. In cases where the share in the business is greater than 50 per cent, the managing director has substantial influence over the fate of the company, meaning that it can be assumed that he or she is self-employed and thus subject to the obligation to make contributions to social security. This can also be true of minority shareholdings if the managing director has a comprehensive blocking minority or has free reign in relation to his or her workforce as well as place of work and working hours.

Having said all of that, when it comes to classifying an occupation as an employed or self-employed role it is not only the contractual framework but also the actual content and drafting that are decisive, as these may in practice deviate from the contractual arrangements.

The first step should therefore always be to establish whether there is an obligation to contribute to social security. Contractual arrangements that are designed only to circumvent this obligation can have expensive repercussions in the form of back payments if the actual circumstances give rise to an obligation to make contributions to social security. If, on the other hand, these circumstances allow for an exemption from said obligation, the contracts can be prepared accordingly.

Lawyers who are experienced in the field of company law can advise shareholders and managing directors.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

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GesellschaftsrechtPressemitteilungen
news-3079 Wed, 17 Jan 2018 08:52:49 +0100 LAG Rheinland-Pfalz: Dismissal with immediate effect for damage to property effective https://www.grprainer.com/en/news-and-press/detail/news/lag-rheinland-pfalz-dismissal-with-immediate-effect-for-damage-to-property-effective.html Serious breaches of duty by an employee may justify dismissal with immediate effect. Damage to property can constitute good cause justifying exceptional notice of dismissal with immediate effect.

An employer is able to issue exceptional notice of dismissal with immediate effect if it has good cause for doing so and the individual circumstances of the respective case have been sufficiently accounted for. In order for notice of dismissal to be issued effectively, the grounds need to be sufficiently serious such that it would no longer be reasonable to expect the employer to continue the employment relationship. One good cause that may justify dismissal with immediate effect is property damage committed by the employee, as shown by a ruling of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland Palatinate] from December 19, 2016 (Az.: 3 Sa 356/16).

In the case in question, an employee had been issued with exceptional notice of dismissal with immediate effect after having struck a touchscreen monitor out of frustration and thereby shattered the glass of the screen. The employee had previously been informed he would only be receiving a small personal profit-sharing bonus. He had already received a formal written warning for similar reasons several months prior to this.

The dismissed worker raised an action for wrongful dismissal but was unsuccessful. The LAG Rheinland-Pfalz held that by damaging the monitor the employee had committed a serious breach of duty pursuant to his employment contract, and that the employer had incurred a financial loss as a result of this. Moreover, the damage was said to have given rise to a potential hazard because the incident had occurred in a potentially explosive environment. The Court stated that equipment in these kinds of potentially dangerous environments cannot be altered or manipulated as this would impinge on the safety measures in place and safety could no longer be guaranteed. In addition, the Court also noted that the plaintiff had already been issued with a formal warning for a similar breach of duty.

The LAG concluded after weighing up the parties’ mutual interests and considering all of the facts and circumstances of the case that it was no longer reasonable to expect the employer to continue the employment relationship. By damaging the monitor, the employee was said to have not only acted contrary to the employer’s interests but also severely undermined the trust placed in him. The Court went on to point out that not even the formal warning had caused the employee to refrain from his unsafe behavior.

Whether notice of dismissal with immediate effect has been issued effectively is always a case-by-case decision. Employers should therefore carefully prepare before issuing notice of dismissal. Lawyers who are experienced in the field of employment law can advise on all issues pertaining to the workplace.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3074 Thu, 11 Jan 2018 07:53:31 +0100 GRP Rainer Rechtsanwälte: Assessing the grounds for dismissal with immediate effect https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-assessing-the-grounds-for-dismissal-with-immediate-effect.html Exceptional notice of dismissal with immediate effect needs to be well prepared if it is to be issued effectively. To this end, it needs to be assessed whether sufficient grounds for dismissal exist.

Employers can only issue exceptional notice of dismissal with immediate effect if there is good cause for doing so. We at the commercial law firm GRP Rainer Rechtsanwälte note that the grounds need to be sufficiently serious such that it would no longer be reasonable for the employer to be expected to continue the employment relationship, even until the next possible due termination date. That is why assessing the grounds for dismissal ought to have priority prior to issuing notice of dismissal.

In order for notice of dismissal with immediate effect to be issued effectively various conditions need to be met: The employee must have severely breached his obligations pursuant to his employment contract. The violation needs to have significant enough that it is no longer reasonable to expect the employer to continue the employment relationship. Moreover, the violation has to have been intentionally or at least negligently committed. It also needs to be examined whether a less severe measure, e.g. ordinary notice of dismissal or a written warning, would be sufficient to prevent further breaches of duty on the part of the employee. Furthermore, notice of dismissal must be issued within two weeks of the employer becoming aware of the grounds for dismissal. Ultimately, the interests of the contractual parties in immediately terminating or continuing the employment relationship need to be weighed up. The employer must be able to make the case why its interest in terminating the employment relationship with immediate effect should take precedence. Exceptional notice of dismissal with immediate effect therefore needs to be properly justified.

Good cause for issuing exceptional notice of dismissal may exist, for instance, if the employee fails to carry out the duties he owes pursuant to his employment contract or is guilty of serious misconduct vis-à-vis his superiors or colleagues, e.g. in the form of insults or even physical assault. These kinds of breaches of duty may result in it no longer being reasonable to expect the employer to continue the employment relationship. That being said, it is ultimately decided on a case-by-case basis whether notice of dismissal with immediate effect has been issued effectively.

Lawyers who are experienced in the field of employment law can advise employers on issues pertaining to the workplace should legal disputes arise.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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ArbeitsrechtPressemitteilungen
news-3071 Tue, 09 Jan 2018 08:21:39 +0100 Berliner Testament – Final heir able to reclaim gifts https://www.grprainer.com/en/news-and-press/detail/news/berliner-testament-final-heir-able-to-reclaim-gifts.html A joint spousal will has a strong binding effect and can potentially affect gifts made by the surviving spouse, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].

A type of will known as a “Berliner Testament” (“Berlin will” in English) is popular among married couples. Spouses can use this to mutually appoint each other as sole heirs and typically their children as final heirs. The snag when it comes to a joint spousal will is its strong binding effect. We at the commercial law firm GRP Rainer Rechtsanwälte note that the surviving partner is bound by the joint provisions, even after the death of the first spouse, and can no longer unilaterally alter these if no provisions allowing for this were agreed.

This strong binding effect can also affect gifts made by the surviving spouse. It may be possible for the final heir as defined in the joint spousal will to reclaim these gifts, as shown by a judgment of the Oberlandesgericht Hamm from September 12, 2017 (Az.: 10 U 75/16).

In the instant case, a married couple had appointed their son as final heir in their joint spousal will. Several years after the death of his wife, the husband moved in together with another woman. At the behest of his father, the son agreed with said woman to a lifelong right of residence in relation to the father’s house on condition that she care for the father and not avail herself of any claims to own the house. Additionally, the father also assigned the woman various items of property amounting to a total value in the region of 250,000 euros. Following the death of his father, the son in his capacity as final heir sued for the surrender of these assets and justified this by contending that the donations as part of his inheritance were detrimental gifts which needed to be reversed.

The OLG granted the claim, ruling that the testator in gifting the assets in question to the woman had compromised his son’s expected inheritance. The Court held, however, that the father had been obliged to be mindful of his son’s appointment as final heir in the will, and that the former was bound by the relevant joint provisions. It went on to say that the testator had no reasonable interest in the gifts made during his lifetime, particularly as the woman had enjoyed free board and lodging living with him anyway.

It is always possible for disputes to arise, even if there is a will. Lawyers who are experienced in the field of succession law can advise on matters pertaining to wills and contracts of inheritance.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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Testament / ErbvertragPressemitteilungen