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 Wed, 20 Feb 2019 02:07:16 +0100 Wed, 20 Feb 2019 02:07:16 +0100 TYPO3 news-3450 Mon, 18 Feb 2019 09:13:42 +0100 GRP Rainer Rechtsanwälte – Report on commercial agents’ right to claim compensation https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-commercial-agents-right-to-claim-compensation.html Commercial agents are entitled to claim compensation. The European Court of Justice (ECJ) has since clarified that this right persists even if the commercial agency agreement is terminated during the probationary period.

Commercial agents are entitled to claim compensation pursuant to paragraph 89b of the Handelsgesetzbuch (HGB), Germany’s Commercial Code, if the commercial agency agreement is terminated. Because the company frequently continues to profit from the contacts established by the commercial agent and maintain business relations with these clients after the agreement has come to an end, the intention behind this entitlement is to enable agents to benefit from these business dealings as well. The right to claim compensation cannot simply be excluded. We at the commercial law firm GRP Rainer Rechtsanwälte can equally report, however, that this same right has also given rise to legal disputes time and time again.

There are certainly circumstances under which the right to claim compensation can lapse. This can happen if, for instance, the commercial agent is the one who terminates the agreement or misconduct on his or her part resulted in the agreement being terminated. One factor that does not affect the right to claim compensation, on the other hand, is the duration of the contractual relationship or whether the commercial agent is still on employment probation. That was the verdict of the European Court of Justice in a judgment from April 19, 2018 (Az.: C-645/16).

In the instant case, the commercial agency agreement provided for, among other things, a twelve-month probation period. During this period of time, both parties were entitled to terminate the agreement subject to a specified notice period. After the commercial agent clearly failed to meet the company’s expectations as well as the agreed targets, the latter decided to avail itself of this right of termination. The commercial agent subsequently asserted their right to claim compensation. The company took the view that this right does not arise in the event of the agreement being terminated during the probationary period.

The dispute made it all the way to the ECJ, which ruled in favor of the commercial agent. A commercial agent’s rights to compensation are regulated in an EU regulation. The ECJ held that the rights to compensation and damages provided for under this regulation are meant to indemnify the commercial agent for the services performed by him or her from which the company continues to benefit from or for the costs and expenses he or she incurred. The Court went on to state that this entitlement cannot be dismissed on the basis that the agreement was terminated during the probationary period.

Lawyers who are experienced in the field of commercial law can serve as expert advisors to 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-3449 Thu, 14 Feb 2019 10:45:30 +0100 GRP Rainer Rechtsanwälte – Experience dealing with abuses of a dominant market position and violations of antitrust law https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-dealing-with-abuses-of-a-dominant-market-position-and-violatio.html Abuse of a dominant market position or superior market power constitutes a violation of antitrust law and can be sanctioned accordingly.

In a judgment from January 23, 2018 on the so-called “Anzapfverbot”, i.e. the prohibition on demanding unjustified benefits from suppliers, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, further tightened the rules regarding abuse of a dominant market position (Az.: KVR 37/17). According to the Karlsruhe judges’ ruling, if the business occupying a dominant market position asks a contractual partner to grant it advantages in the absence of an objective justification for these advantages, this is enough to give rise to a presumption of a violation of antitrust law. We at the commercial law firm GRP Rainer Rechtsanwälte note that the judgment illustrates the need for experience when two or more parties are negotiating terms to avoid overstepping the boundaries for violating either competition or antitrust law.

In the instant case, the business in question had gone too far with its demands and abused its dominant market position and superior market power by demanding more favorable terms from its suppliers in the form of discounts and benefits. The BGH deemed this a violation of antitrust law due to the absence of any kind of consideration or objective justification.

Following the BGH’s ruling, suppliers are now better protected in the event of businesses in a dominant market position exerting pressure on them with the intention of more or less forcing them to agree to different terms. While the Court’s decision does not mean that negotiations are no longer permitted as a means of achieving the best possible outcome for one’s company, the ruling does necessitate care and sensitivity as well as an objective justification in order to remain within the confines of the law.

According to the Gesetz gegen Wettbewerbsbeschränkungen (GWB), Germany’s Act Against Restraints of Competition, a business is considered to be in a dominant market position if it has no competitors or holds a paramount market position, with the result that the business is not exposed to any substantial competition. A business is deemed to have abused this kind of market power if it asks its contractual partners to grant it advantages without an objective justification for doing so.

Lawyers who are experienced in the fields of antitrust and competition law can advise businesses and enforce or fend off claims in the event of violations of antitrust or competition law.

For more informations:

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

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KartellrechtPressemitteilungen
news-3444 Mon, 04 Feb 2019 08:27:05 +0100 OLG Frankfurt – Misleading advertising by carrying over likes and reviews https://www.grprainer.com/en/news-and-press/detail/news/olg-frankfurt-misleading-advertising-by-carrying-over-likes-and-reviews.html Franchisees need to be careful. If they change their franchise partner, they cannot simply carry over the likes and stars they have accumulated to the new company.

Many businesses nowadays choose to present themselves online, including on social networks. Any positive reviews in the form of likes or stars that they accumulate naturally have a positive advertising effect. Franchisees need to be careful nonetheless. They cannot simply carry over the reviews they have accumulated online to the new company if they change their franchise partner. We at the commercial law firm GRP Rainer Rechtsanwälte note that doing so could violate the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act, and thus competition law.

In a ruling from June 14, 2018, the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt, found carrying over online reviews in a case involving a change of company to be misleading and therefore constituted a violation of competition law (Az.: 6 U 23/17).

In the case in question, the defendant was a franchisee running several restaurants as part of a chain. Facebook users were able to review and like the restaurants on the company’s Facebook page. When the defendant changed its franchise partner, it carried over the reviews to the new company and got more than it had bargained for in the form of an injunction suit. The OLG Frankfurt upheld the judgment of the court of lower instance as well as the plaintiff’s injunction suit.

The OLG noted that the parties are and were in practice in a competitive relationship, ruling that the defendant had violated the UWG by publishing reviews and likes on its Facebook pages for the restaurants of its new partner despite these having been written and given in relation to the original partner’s restaurants.

The OLG Frankfurt went on to say that this kind of advertising is misleading to consumers because it gives the target audience the impression that the reviews were written in reference to the restaurants of the new partner, which was not in fact the case. The fact that the defendant personally created the relevant Facebook pages was said not to preclude the finding that the advertising was misleading; the risk of misleading the public could have been easily eliminated by creating a new Facebook page.

Misleading advertising as well as other violations of competition law can be met with sanctions, including formal warnings and injunction suits. Lawyers who are experienced in the field of competition law can advise on enforcing and fending off claims.

For more informations:

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

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WettbewerbsrechtPressemitteilungen
news-3443 Fri, 01 Feb 2019 09:02:04 +0100 BFH – Claim for transfer of ownership in family home not exempt from inheritance tax https://www.grprainer.com/en/news-and-press/detail/news/bfh-claim-for-transfer-of-ownership-in-family-home-not-exempt-from-inheritance-tax.html A ruling of the Bundesfinanzhof (BFH), Germany’s Federal Fiscal Court, illustrates the distinction made for the purposes of inheritance tax between a family home and the claim to transfer ownership in a family home (Az.: II R 14/16).

A family home can be inherited tax free, irrespective of its value, if the inheriting spouse or partner continues to occupy the home for an additional ten years. Children can also benefit from this exemption from inheritance, albeit with restrictions. However, there lurks a trap in German tax law if it is merely the right to transfer ownership in a family home and not the family home itself that is handed down. We at the commercial law firm GRP Rainer Rechtsanwälte note that under these circumstances the case law of the BFH confers no right to exemption from inheritance tax.

In a judgment from November 29, 2017, the Bundesfinanzhof ruled that a claim backed by a priority notice of conveyance to transfer ownership in a family home acquired by the surviving spouse by virtue of the deceased’s passing is not exempt from inheritance tax. It held that tax exemption requires that the deceased spouse have been owner or co-owner of the family home and that the heir acquires these ownership rights due to the former’s death.

This did not happen in the instant case. The testatrix had acquired a condominium and four underground parking spaces for about 4.5 million euros in 2007. A priority notice of conveyance was registered in the land register in her favor. In December of 2008, the married couple moved into the property. The testatrix had set out in a will that the condominium was to go to her husband alone and that the remaining assets were to be distributed according to the rules of intestate succession. At the time of her death, the testatrix had not yet been registered in the land register as the owner of the property.

After the death of his wife, the husband had himself registered in the land register as the owner in February of 2010 and continued without interruption to use the property as a private residence. In his inheritance tax declaration, he applied for an exemption from inheritance tax for the acquisition of the house. The tax office rejected the application and the man’s legal action was also unsuccessful. The BFH stressed that a claim backed by a priority notice of conveyance to transfer ownership in a family home acquired by reason of death is not exempt from inheritance tax.

Lawyers who are experienced in the field of tax law can advise on matters pertaining to inheritance tax.

For more informations:

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

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ErbschaftssteuerPressemitteilungen
news-3441 Wed, 30 Jan 2019 09:07:47 +0100 Purchasing cooperatives and antitrust law https://www.grprainer.com/en/news-and-press/detail/news/purchasing-cooperatives-and-antitrust-law.html Purchasing cooperatives provide value to many retailers and traders. However, with these kinds of associations it is necessary to ensure that they do not violate antitrust or competition law.

Purchasing cooperatives can be particularly beneficial for small and medium-sized merchants looking to strengthen their position in the market. While purchasing cooperatives of this kind are allowed under EU law, their market share cannot be too large. We at the commercial law firm GRP Rainer Rechtsanwälte note that a market share of around 15 percent serves as a benchmark here.

It is in view of this that the Bundeskartellamt, Germany’s Federal Cartel Office, has initiated administrative proceedings against a purchasing cooperative for furniture. The cooperative already counts several commercial enterprises as its members, with another group wishing to join in the coming year. The Bundeskartellamt is now assessing whether there are concerns pertaining to competition law that preclude the group being admitted.

Antitrust law does not, as a general rule, preclude purchasing cooperatives of this kind, as these associations enable small and medium-sized businesses to maintain and strengthen their position in the market and, of course, also provide consumers with goods on more favorable terms. But there are limits: these kinds of cooperatives can put pressure on manufacturers. If their influence on the market becomes too great, this can have negative consequences. Manufacturers that cannot meet the negotiated terms could be pushed out of the market, reducing supply and ultimately subjecting consumers to rising prices.

That is why EU antitrust legislation provides that these kinds of purchasing cooperatives should not obtain a market share greater than approx. 15 percent. The Bundeskartellamt will now examine the purchasing cooperatives in the furniture sector from a number of different angles to determine whether there are concerns pertaining to antitrust law that preclude the association’s expansion.

Violations of antirust or competition law can be met with severe penalties, including formal written warnings, injunction suits and damages claims. Yet violations are by no means always obvious; even individual clauses within contracts can violate provisions of antitrust law. Lawyers who are experienced in the fields of antitrust and competition law can offer advice.

For more informations:

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

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KartellrechtPressemitteilungen
news-3439 Fri, 25 Jan 2019 08:26:00 +0100 Possibility of formal warnings in response to violations of the GDPR https://www.grprainer.com/en/news-and-press/detail/news/possibility-of-formal-warnings-in-response-to-violations-of-the-gdpr.html Whether a violation of the General Data Protection Regulation (GDPR) constitutes a violation of competition law and can therefore, as a matter of law, give rise to a formal written warning is still disputed.

Many were concerned that the General Data Protection Regulation, GDPR for short, entering into force would herald a veritable wave of written warnings in response to violations of the Regulation. These concerns have so far proven unfounded. We at the commercial law firm GRP Rainer Rechtsanwälte note that one probable reason for this is the sheer lack of consistency in the case law to date on whether a violation of the GDPR constitutes a violation of competition law and can thus lead to a formal written warning.

The courts have thus far delivered different rulings on the matter. The Landgericht Würzburg, the Regional Court of Würzburg, found in one case involving a violation of the GDPR that it represented a violation of Germany’s Unfair Competition Act, the Gesetz gegen den unlauteren Wettbewerb (UWG). It held that competitors could issue a formal written warning as a result of the violation of competition law or sue for an injunction or damages (Az.: 11 O 174/18 UWG).

The Landgericht Bochum, the Regional Court of Bochum, reached a different conclusion. It ruled in a judgment from August 7, 2018 that violations of the GDPR do not constitute violations of competition law and competitors are therefore not allowed to issue formal warnings in response to them (Az.: I-12 O 95/18). In the case in question, an online merchant had been issued with a formal warning as well as an injunction suit by a rival business for violating the GDPR. The LG Bochum dismissed the claim, ruling that the provisions in articles 77 to 84 of the Regulation dealing with claims brought by competitors are exhaustive. Accordingly, only certain institutions and organizations that are not intent on making a profit are entitled to safeguard the interests of those affected. The Court therefore concluded that the legislature wanted to avoid the possibility of competitors being issued with formal written warnings for violations of the GDPR.

The different interpretations in the case in the law suggest that the GDPR will continue to occupy the courts for some time yet. To avoid legal disputes, businesses and traders ought to assess whether they are complying with data protection requirements. Violations can potentially lead not only to formal warnings from competitors but also heavy fines imposed by supervisory authorities. Lawyers who are experienced in the field competition law can offer advice.

For more informations: https://www.grprainer.com/en/legal-advice/competition-law.html

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PressemitteilungenWettbewerbsrecht
news-3437 Wed, 23 Jan 2019 08:14:00 +0100 BGH – Champagne must define the taste of a champagne sorbet https://www.grprainer.com/en/news-and-press/detail/news/bgh-champagne-must-define-the-taste-of-a-champagne-sorbet.html A champagne sorbet needs to actually taste like champagne; otherwise, this description cannot be used. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from July 19, 2018 (Az.: I ZR 268/14).

Not unlike in the case of brands, it is also possible to protect designations of origin on the grounds that consumers may associate geographical indications of origin with a certain quality. We at the commercial law firm GRP Rainer Rechtsanwälte note that a protected designation of origin is considered to have been unlawfully exploited if its reputation is exploited.

The legal dispute between a discount supermarket selling ice cream featuring the description “Champagner Sorbet” (German for “champagne sorbet”) and an association of wine growers from the Champagne region has occupied the courts for years. The wine growers viewed the description as a violation of the designation of origin “Champagne”.

The Bundesgerichtshof referred the case to the European Court of Justice (ECJ). The ECJ held that the reputation of a protected designation of origin is considered to have been unlawfully exploited if the intent behind using the designation is to profit from its reputation without permission. The Court noted that this could be the case with “Champagner Sorbet”, since consumers associate this with a certain level of quality and price category. The ECJ went on to state, however, that if the product’s taste comes primarily from the champagne used in its making then there are no grounds for objecting to the use of the description “Champagner Sorbet”.

The BGH has since ruled that the designation of origin “Champagne” is deemed to have been unfairly exploited if in spite of the product containing champagne this does not define its taste. Furthermore, the champagne in the product can be said not to define its taste if despite tasting like a wine-based product the taste comes primarily from other ingredients and not the champagne.

The Court also held that if the taste of a food product referred to as “Champagner Sorbet” cannot be attributed to champagne as an ingredient, this is deemed to be misleading to consumers. The use of the term “Champagner” was said to be a strong indication to consumers that the product tastes like champagne and that the latter’s use as an ingredient is what defines the taste. The Oberlandesgericht München, the Higher Regional Court of Munich, must now determine what property defines the relevant product’s taste.

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

For more informations: https://www.grprainer.com/en/legal-advice/ip-law/trademark-law.html

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MarkenrechtPressemitteilungen
news-3435 Fri, 18 Jan 2019 08:58:00 +0100 German Finance Ministry confirms simplification of input tax deduction from invoices https://www.grprainer.com/en/news-and-press/detail/news/german-finance-ministry-confirms-simplification-of-input-tax-deduction-from-invoices.html Following the decision of the Bundesfinanzhof (BFH) to simplify the deduction of input VAT from invoices, the Federal Ministry of Finance (BMF) confirmed in a circular dated 7 Dec 2018 that it will be applying this case law.

In judgments from 21 June 2018, the BFH ruled that it is enough for an invoice to include the invoicing party’s postal address and not necessary to specify the premises where it carries out its commercial activities over and above this (Az.: V R 25/15, V R 28/16). We at GRP Rainer Rechtsanwälte note that in doing so the BFH has simplified the deduction of input VAT for businesses.

Accordingly, to be entitled to deduct input VAT from an invoice, it is enough for the invoice to include an address at which the invoicing party can be contacted. The BMF subsequently released a circular on 7 Dec 2018 amending the UStAE, a directive on the application of VAT (III C 2 – S 7280-a/07/10005 :003). It now states that any address is sufficient so long as the business providing the service or the beneficiary can be contacted there. Whether the business carries out its commercial activities at the address specified on the invoice is irrelevant. PO box, wholesale customer and c/o addresses all satisfy the requirements.

Lawyers who are versed in the field of tax law can advise on tax disputes with the tax authorities.

For more informations: https://www.grprainer.com/en/legal-advice/tax-law/tax-dispute.html

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PressemitteilungenSteuerrecht
news-3433 Wed, 16 Jan 2019 07:39:00 +0100 European Commission fines electronics manufacturers for e-commerce price manipulation https://www.grprainer.com/en/news-and-press/detail/news/european-commission-fines-electronics-manufacturers-for-e-commerce-price-manipulation.html The European Commission has imposed fines in separate rulings on four electronics manufacturers totaling 111 million euros in response to violations of EU competition law.

On 24 July 2018, the European Commission announced that four electronics manufacturers had been fined for dictating fixed and minimum prices to their online retailers for selling products and thus breaching EU competition law.

The four electronics manufacturers implemented vertical price restrictions in the form of fixed or minimum price guidelines by restricting their online merchants’ scope to set retail prices themselves for common electrical products such as laptops, hi-fi systems and kitchen appliances. If online retailers sold the products at lower prices, the manufacturers got involved, threatening, for instance, to stop delivering supplies. Because a lot of online merchants make use of price algorithms to adjust their prices in relation to the prices set by their competitors, the restrictions affect the price of the entire segment of the respective product. The European Commission went on to note that the manufacturers had access to instruments allowing them to monitor resale pricing in their sales network and quickly intervene in the event of price drops.

These measures were said to have hampered effective price competition between the retailers, and this, in turn, led to higher prices and thus had a direct impact on consumers. As a result, the electronics manufacturers had violated EU antitrust law and were reprimanded and fined by the Commission. The fines were reduced in light of all the companies cooperating with the Commission.

Retailers and consumers affected by the manufacturers’ anti-competitive conduct are now able to assert claims for damages. We at the commercial law firm GRP Rainer Rechtsanwälte note that because of the Commission’s rulings it is no longer necessary to demonstrate that the manufacturers acted unlawfully.

As e-commerce continues to grow in importance, competition watchdogs and cartel offices will be paying closer attention. Illegal pricing arrangements hamper fair competition and may be met with severe penalties. That being said, violations of antitrust law are by no means so obvious in every other case; even individual contractual clauses can infringe existing laws. That is why agreements ought to be reviewed with a view to their implications from the perspective of competition law by lawyers who are versed in the fields of antitrust law and competition law.

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

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PressemitteilungenKartellrecht
news-3431 Tue, 15 Jan 2019 08:13:00 +0100 Legality of advertising with statements on the effects of medical treatments https://www.grprainer.com/en/news-and-press/detail/news/legality-of-advertising-with-statements-on-the-effects-of-medical-treatments.html Advertisements featuring statements on the effects of medical treatments are only permissible if they are supported by sound scientific evidence. This was reaffirmed by the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt.

Advertisements featuring health claims are subject to stringent requirements regarding the accuracy and ambiguity of the relevant statements. This is because misleading health claims can pose a significant risk to patients. We at the commercial law firm GRP Rainer Rechtsanwälte note that for this reason statements on the effects of a medical treatment are generally only permissible if they are based on sound scientific evidence.

In a judgment from 21 June 2018, the Oberlandesgericht Frankfurt reaffirmed that advertisements featuring statements on the effects of medical treatments are permitted as long as there is no indication that the statement on their effects is contentious or that it lacks any scientific basis. The Court went on to say that if the advertising statement is contentious, the party responsible for the advertising needs to demonstrate that the statement is accurate and the scientific basis for the promised effects must already be documented at the time of the advertisement’s release (Az.: 6 U 74/17).

In the instant case, a doctor had promoted various treatment methods from the field of osteopathy on his homepage, including treatment procedures associated with craniosacral osteopathy. An association of commercial enterprises brought an action for an injunction against this. It viewed the treatment methods in question as belonging to the field of alternative medical treatments lacking scientific proof of their efficacy.

The action was partially successful. The OLG Frankfurt held that the doctor could continue to advertise with the statements on the efficacy of the general and infant osteopathic treatment methods. The Court stated that in this regard the plaintiff had failed to sufficiently make the case that the methods being promoted were not reliable as a whole and for the advertised indications. However, it took a different view with respect to the statements on craniosacral osteopathy, stating that the plaintiff had demonstrated that there was no sound scientific basis to support the effectiveness of the treatment methods in question. The OLG went on to note that study findings are only deemed to be sound if based on double-blind randomized placebo-controlled trials.

Misleading advertising or violations of competition law can quickly lead to formal warnings, damages claims or injunction suits. Lawyers who are experienced in the field of competition law can serve as competent advisors.

For more informations: https://www.grprainer.com/en/legal-advice/competition-law.html

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WettbewerbsrechtPressemitteilungen
news-3429 Mon, 14 Jan 2019 07:00:00 +0100 ECJ – Distinctive character necessary for registration as EU trade mark https://www.grprainer.com/en/news-and-press/detail/news/ecj-distinctive-character-necessary-for-registration-as-eu-trade-mark.html For a sign to be capable of being registered as an EU trade mark, it must be distinctive across the entire European Union. This was confirmed by the Court of Justice of European Union (ECJ) in a ruling from 25 July 2018.

According to the ECJ’s case law, a sign lacking original distinctive character can only be registered as an EU trade mark if it has acquired distinctive character in the part of the EU where it previously lacked this quality. The relevant part of the EU may consist of a single member state. We at the commercial law firm GRP Rainer Rechtsanwälte note that for the purposes of registering such a mark, it is not enough to demonstrate that it has acquired this distinctive character across a significant portion of the EU.

It is in light of this that the European Union Intellectual Property Office (EUIPO) must now re-examine whether the registration of the three-dimensional shape of a chocolate bar as an EU trade mark ought to be upheld following a ruling of the ECJ from 25 July 2018 (Az.: C-84/17 P). The EUIPO had registered the sign as an EU trade mark as early as 2006. Another food producer requested that the mark be declared invalid but to no avail. The EUIPO rejected the request, reasoning that the mark had acquired distinctive character by virtue of its use within the EU.

However, the General Court of the European Union overturned this decision in late 2016, ruling that the necessary distinctive character had only been demonstrated with respect to part of the European Union but not in relation to the rest of the relevant public. The EUIPO and the trade mark owner were skeptical of whether it is necessary for the owner of a trade mark to demonstrate distinctive character with regard to each and every member state, arguing that this is not consistent with the principle of uniformity of EU trade marks or indeed the single market.

The ECJ has since reaffirmed the Court’s decision in a recent ruling, stating that while it is not necessary to prove that the mark in question has acquired distinctive character through use in relation to each and every member state of the EU, the evidence presented must be capable of demonstrating that distinctive character has been acquired in all member states where the sign previously lacked original distinctive character. It now falls to the EUIPO to adjudicate once again on the registration of the mark.

Lawyers who are experienced in the field of intellectual property law can advise on all matters pertaining to trade mark registration and protection.

For more informations: https://www.grprainer.com/en/legal-advice/ip-law/trademark-law.html

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PressemitteilungenMarkenrecht
news-3427 Fri, 11 Jan 2019 09:26:00 +0100 ECJ on the protection of geographical indications of origin https://www.grprainer.com/en/news-and-press/detail/news/ecj-on-the-protection-of-geographical-indications-of-origin.html As in the case of trade marks, it is similarly possible to protect geographical indications of origin (GIOs). A decision of the ECJ from 19 December 2018 shows that this protection can be extensive (Az.: C-367/17 S).

Consumers may associate GIOs with a certain quality. We at the commercial law firm GRP Rainer Rechtsanwälte note that it is therefore possible to protect them in a similar manner to trade marks.

The label “Schwarzwälder Schinken”, i.e. Black Forest ham, is a protected geographical designation. An organization submitted a request to the German Patent and Trade Mark Office to have this protection extended so that Schwarzwälder Schinken can only be sliced and packaged in the Black Forest to ensure its quality. The organization took action against a producer that had its ham produced in the Black Forest but further processed elsewhere. The dispute ultimately came before the ECJ.

The ECJ held that a prohibition on further processing outside of the area covered by a GIO can be justified if this is a necessary and proportionate measure to ensure the quality of the product or guarantee its origin. It went on to state that whether further processing the ham outside of the Black Forest potentially compromises its quality must now be ruled on by Germany’s Bundespatentgericht.

Lawyers who are experienced in the field of IP law can offer advice.

For more informations: https://www.grprainer.com/en/legal-advice/ip-law/trademark-law.html

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PressemitteilungenIP Recht
news-3426 Fri, 11 Jan 2019 09:09:00 +0100 BAG – Employers can claw back bonus payments https://www.grprainer.com/en/news-and-press/detail/news/bag-arbeitgeber-kann-sonderzahlung-zurueckverlangen-1.html The Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, confirmed in a recent ruling that employers can claw back collectively agreed bonus payments from employees under certain circumstances.

It is common for employment contracts to include provisions on collectively agreed bonus payments, for instance when employers promise to pay a Christmas bonus. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that an employee’s entitlement to receive this annual bonus payment can be made conditional on the employment relationship continuing until a cutoff date outside of the reference period for payment in the following year. This position was reaffirmed by the Bundesarbeitsgericht in a ruling from 27 June 2018 (Az.: 10 AZR 290/17).

In the case in question, the employment contract stipulated that the employee was entitled to receive a collectively agreed yearly bonus payment on the 1 December. The contribution was also meant to serve as remuneration for work that had been performed. The contract further stated that the employee was to repay this bonus payment if he or she leaves the employment relationship during the period ending on 31 March of the following year through their own fault or of their own volition. In this case, the employee had terminated the employment relationship in October, in due time for this to take effect from January 2016. His employer paid out the agreed bonus to him on 1 December in the amount of one month’s wages and after the employment relationship was terminated demanded it be repaid. The employee refused to repay the bonus, arguing that the relevant tariff provision was invalid, disproportionately restricted his scope for terminating the employment relationship and breached his fundamental right to choose and pursue a professional activity.

The Bundesarbeitsgericht nonetheless held that the employer was entitled to repayment of the bonus, ruling that such a provision would be considered invalid if it were firmly established as a clause in the general terms and conditions of the employment contract and placed the employee at an undue disadvantage. The BAG clarified that the content of tariff wage agreements incorporated in their entirety into employment contacts, on the other hand, is not subject to this kind of review.

The Court found that the employee’s obligation to repay the amount arose from a provision in a tariff wage agreement concerning a cutoff date and did not violate any superior rule of law. The BAG noted that while the result amounted to a restriction on the employee’s freedom to choose and pursue a professional activity, this restriction was proportionate.

Lawyers who are experienced in the field of employment law can advise employers in relation to both individual and collective employment law.

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

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PressemitteilungenArbeitsrecht
news-3420 Fri, 04 Jan 2019 11:45:14 +0100 M&A – Tighter rules for foreign investors entering German market https://www.grprainer.com/en/news-and-press/detail/news/ma-tighter-rules-for-foreign-investors-entering-german-market.html While corporate mergers and acquisitions boomed in 2018, investors from outside of the EU will now have a more difficult time joining or acquiring German businesses.

At the end of 2018, the German federal government passed an amendment to the Außenwirtschaftsverordnung (AWV), Germany’s Foreign Trade and Payments Ordinance. We at the commercial law firm GRP Rainer Rechtsanwälte note that its core function was to tighten the rules for foreign investors from outside of the EU entering the German market via German companies.

The amendment to the AWV concerns sensitive sectors of the economy such as defence and critical infrastructure, including e.g. telecommunications, IT security, the provision of drinking water, payment transactions, power, health services, transport and software. The federal government now has a right of veto over these sectors if an investor wishes to acquire a ten per cent stake in a German business. The threshold was previously set at 25 per cent.

It should be noted, however, that the lowering of the threshold for assessment only applies to sensitive sectors, as there is a desire for Germany to remain an attractive location to foreign investors for M&A transactions. Critics are nonetheless worried that foreign investors will be put off by these stricter rules.

Investors and entrepreneurs can turn to lawyers who are experienced in the field of M&A.

For more informations:

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

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M&APressemitteilungen
news-3417 Wed, 02 Jan 2019 09:14:30 +0100 OLG Frankfurt – Selective prohibition on sale of luxury items online allowed https://www.grprainer.com/en/news-and-press/detail/news/olg-frankfurt-selective-prohibition-on-sale-of-luxury-items-online-allowed.html A supplier of luxury perfumes is allowed to prohibit its distribution partners from promoting and selling its products online via third party platforms. That was the verdict of the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt.

The OLG Frankfurt’s decision was preceded by a preliminary ruling of the Court of Justice of the European Union (ECJ). We at the commercial law firm GRP Rainer Rechtsanwälte can report that the ECJ’s ruling from the end of 2017 found that a selective distribution system for luxury items designed primarily to safeguard a luxury image is allowed and does not violate the prohibition on cartels under EU law (Az.: C-230/16). In a judgment from 12 July 2018, the OLG Frankfurt applied the ECJ’s guidelines to its case.

The plaintiff in the case in question sells branded cosmetic products in Germany, and the defendant was one of the plaintiff’s authorized retailers (specialist dealers) required to comply with certain quality standards when selling the relevant products. The defendant sold the products in a brick-and-mortar store, on its online shop as well as on “amazon.de”. The point of contention concerned the sale of the products via the third-party vendor. The parties had agreed, among other things, that involving a third-party company in selling the products online was not allowed unless express permission had been granted in relation to said company. The relevant clause was revised to allow for selling online so long as the products’ luxury character remained intact. Any discernible involvement of a third-party company not among the authorized specialist dealers was expressly forbidden.

The defendant failed to sign the amended clause and continued selling the goods on Amazon, much to the annoyance of the plaintiff. The OLG Frankfurt granted the manufacturer’s action, ruling that the latter is allowed to demand that its products not be sold via third-party platforms such as Amazon. The Court went on to note, however, that this does not cover collaborations purely concerned with advertising, whereby the customer is redirected to the retailer’s online shop.

The supplementary agreement regarding the sale of the goods online was found to be an integral part of a qualitative selective distribution system. The OLG held that restrictions of this kind are allowed if they are necessary to safeguard the luxury image of goods whose quality is not based solely on their physical characteristics but also their prestigious image that lends them their luxury appearance and features.

Lawyers who are versed in the fields of competition law and antitrust law can offer advice in the event of disputes between dealers and companies.

For more informations:

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

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KartellrechtPressemitteilungen
news-3414 Thu, 27 Dec 2018 09:24:39 +0100 Antitrust violations – BGH bolsters the rights of aggrieved parties https://www.grprainer.com/en/news-and-press/detail/news/antitrust-violations-bgh-bolsters-the-rights-of-aggrieved-parties.html In a ruling from 12 June 2018, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, has facilitated the enforcement of damages claims in response to violations of antitrust law with respect to the statute of limitations for claims (Az.: KZR 56/16).

Cartel members obtain advantages from illegal cartel arrangements that can prove to be costly for other market operators. If fine proceedings are initiated in response to a cartel, this results in the suspension of the statute of limitations for damages claims. The suspension is lifted six months after a final decision has been reached in relation to the fine proceedings. This statutory regulation came into effect in July of 2005. It was disputed whether the statute of limitations is suspended if the antitrust violation occurred prior to the new statutory regulation coming into force, but the damages claims had not yet become time-barred by July 2005. We at the commercial law firm GRP Rainer Rechtsanwälte can report that the Bundesgerichtshof has since clarified that the rule in question also applies to these cases and that the statute of limitations shall be suspended accordingly.

The case before the BGH concerned the so-called “cement cartel”. The cartel members had entered into agreements over a period of years and violated antitrust law. A fine was imposed against them in 2003, but it was another ten years before the fine notice became final following a ruling by the Cartel Panel of the BGH. A building materials dealer sued a cement manufacturer for damages, claiming that it had been made to pay inflated prices for cement. The BGH had to rule on whether the claims for damages had become time-barred after the lower courts reached different rulings.

The Cartel Panel held that the claims had not yet become time-barred. It stated that the new statutory rule that came into force on 1 July 2005 is equally applicable to cases in which the antitrust violation occurred prior to 1 July 2005 and the claims for damages had not yet become time-barred by this point in time.

The BGH’s judgment is a landmark decision that can be applied to a large number of other cases concerned with damages claims arising from violations of antitrust law. Lawyers who are experienced in the fields of antitrust law and competition law can advise businesses and enforce or fend off claims arising from violations of either antitrust law or competition law.

For more informations:

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

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KartellrechtPressemitteilungen
news-3411 Thu, 20 Dec 2018 08:26:35 +0100 FG Baden-Württemberg on a municipality’s input tax deductions https://www.grprainer.com/en/news-and-press/detail/news/fg-baden-wuerttemberg-on-a-municipalitys-input-tax-deductions.html In a ruling from 18 October 2018, the Finanzgericht (FG) Baden-Württemberg, the Fiscal Court of Baden-Württemberg, held that whether a municipality is operating as a commercial entity and entitled to deduct input tax depends entirely on the type of activity and the particular circumstances of a given case (Az.: 1 K 1458/18). We at the commercial law firm GRP Rainer Rechtsanwälte can report that the lawsuit was filed by a climatic spa.

The spa was an owner-operated municipal enterprise treated as a commercial enterprise for the purposes of corporation tax. Revenue subject to sales tax, e.g. from visitor’s tax and input tax, was declared in VAT returns. The input tax amounts were then reduced by the tax authorities.

And rightly so, according to the Finanzgericht: the municipality was found to be operating as a commercial entity entitled to deduct input tax to the extent that it charges third parties for access to a spa house for the purposes of restoration and hosting events. The Court went on to state, however, that it was not deemed to be a commercial entity insofar as it provides services to spa guests in the form of parking facilities, footpaths etc. The use of these amenities is governed by public law and the amount of visitor’s tax is not based on the level of investment in municipal infrastructure. The Court also noted that there was no direct link between the expenses incurred constructing, maintaining and operating the facilities in question and the economic activity associated with running a spa.

For more informations:

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

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SteuerstreitPressemitteilungen
news-3406 Fri, 14 Dec 2018 09:07:00 +0100 Illegal price-fixing in the stainless steel sector – Bundeskartellamt imposes fines https://www.grprainer.com/en/news-and-press/detail/news/illegal-price-fixing-in-the-stainless-steel-sector-bundeskartellamt-imposes-fines.html The Bundeskartellamt, Germany’s Federal Cartel Office, has imposed fines totaling approx. 205 million euros on several companies and their responsible directors and officers in the stainless steel sector in response to illegal price-fixing arrangements.

On 12 July 2018, the Bundeskartellamt announced that it was imposing fines amounting to around 205 million euros in total on six stainless steel companies, one industry association and ten accountable individuals, as those involved were found to have fixed prices and exchanged information deemed to be sensitive from an antitrust perspective. Investigations in relation to four other companies and one organization are still ongoing.

The process began as early as 2015 with the launch of an industry-wide search. The Bundeskartellamt reported that the companies were found to have coordinated on important price components over a period of years and substantially distorted price competition between businesses. The products affected by the arrangements include long steel products belonging to the product groups engineering, tool and high-speed steels as well as RHS steel. These products are typically marketed based on a pricing model that essentially consists of a base price and surcharges for certain charge materials, in particular scrap metal and alloys, with surcharges making up a significant proportion of the final price. The companies in question had been coordinating the method of calculating scrap metal and alloy surcharges and applying this uniformly across the industry from at least 2004 until no later than the searches in November of 2015. Additionally, it was said that those responsible at the companies had exchanged further sensitive information concerning an increase in the base price.

According to the Bundeskartellamt, it became clear from the investigations that the members of the cartel wanted to avoid price competition or at least noticeably reduce it in order to establish as reasonable a market price level as possible for all companies.

Price-fixing agreements distort fair competition and violate antitrust law. We at the commercial law firm GRP Rainer Rechtsanwälte note that violations of this kind can give rise to other severe penalties beyond fines imposed by antitrust authorities. The cartelists may also be faced with damages claims brought by aggrieved parties.

That being said, violations of antitrust law are by no means always as obvious as in the case of illegal price-fixing arrangements; even minor contractual clauses are capable of violating applicable laws. That is why it is advisable to have lawyers who are competent in the fields of antitrust law and competition law review agreements in view of their consequences from the perspectives of both these legal fields.

For more informations:

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

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KartellrechtPressemitteilungen
news-3400 Fri, 07 Dec 2018 08:50:01 +0100 GRP Rainer Rechtsanwälte – Report on authorized dealer’s entitlement to compensation https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-authorized-dealers-entitlement-to-compensation.html Under certain circumstances, an authorized dealer may be entitled to claim compensation after termination of the contract with the company if the latter continues to be able to use its business contacts.

In our experience at the commercial law firm GRP Rainer Rechtsanwälte, it is common for an authorized dealer’s potential claims for compensation after termination of the contract with the company to lead to legal disputes. We note that because the German legislature has not explicitly regulated authorized dealers’ entitlement to compensation, it is possible for the provisions governing commercial agents’ right to compensation under sec. 89b of the Handelsgesetzbuch (HGB), Germany’s Commercial Code, to be applied analogously.

These state that the commercial agent is entitled to claim compensation after termination of the contractual relationship with the company if he or she has established new business contacts and the company continues to be able to benefit from these contacts after the contract has come to an end. This right to compensation cannot be contractually excluded.

The provisions can be applied analogously to an authorized dealer’s entitlement to compensation under certain circumstances. The conditions that need to be met for this to happen were set out by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from 5 February 2015 (Az.: VII ZR 315/13). According to this ruling by Germany’s highest court of ordinary jurisdiction, the right to claim compensation only arises if the authorized dealer was integrated into the company’s sales force and committed to making his or her business contacts available to the company so that the latter can continue using them. The authorized dealer must have committed to transferring his or her client base to the company in such a way that the company is able to readily harness the benefits of this client information without any delay. Furthermore, the authorized dealer must by virtue of special contractual arrangements be integrated into the company’s sales force to such an extent that he or she from an economic perspective has extensive duties to perform that would otherwise have to be met by a commercial agent.

In the case in question, the BGH denied the authorized dealer the right to claim compensation because the company had not been entitled to use the client information, having contractually committed to block the transferred data and delete it at the request of the authorized dealer.

The right to claim compensation is a controversial topic in the case of commercial agents and all the more so in relation to authorized dealers. Lawyers who are experienced in the field of commercial law can assist authorized dealers and businesses in drafting agreements as well as in the event of legal disputes.

For more informations:

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

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HandelsrechtPressemitteilungen
news-3398 Thu, 06 Dec 2018 12:12:42 +0100 The transition from UG to GmbH does not establish a new company https://www.grprainer.com/en/news-and-press/detail/news/the-transition-from-ug-to-gmbh-does-not-establish-a-new-company.html The costs associated with transitioning from an Unternehmergesellschaft (UG), a form of German private limited liability company also referred to colloquially as a “Mini-GmbH”, to a full GmbH cannot be passed on to the GmbH. The Oberlandesgericht (OLG) Celle, Celle’s Higher Regional Court, ruled that the transition in no way represents the establishment of a new company.

When it comes to establishing a company, it is common for the founders to initially opt for the UG as their chosen corporate form. General speaking, the reasons for doing so are financial in nature; 1 euro is sufficient share capital in the case of a UG, whereas 25,000 euros are required in the case of a GmbH. Notwithstanding this, the low share capital requirements often give rise to concerns regarding the financial standing of the UG. We at the commercial law firm GRP Rainer Rechtsanwälte note that for this reason it is common after a while for the UG to be “converted” into a full GmbH.

To turn a UG into a GmbH, it is necessary to increase the share capital. However, the transition from a UG to a full GmbH in no way represents the establishment of a new business. Thus, the costs associated with the transition do not constitute formation costs and cannot be passed on to the GmbH. That was the verdict of the OLG Celle in a ruling from 12 December 2017 (Az.: 9 W 134/17).

In the instant case, the company was originally established as a UG with a share capital of 100 euros. A few months later, the share capital was increased to 25,000 euros and the firm was changed into a GmbH. In addition, the amended articles of association provided that the GmbH would bear the costs associated with the formation up to a certain amount. In the original articles of association, the UG was charged with the formation costs.

The OLG Celle found the provision in the amended articles of association pursuant to which the formation costs were to be shifted onto the GmbH to be invalid, which prevented the GmbH from being registered in Germany’s Commercial Register, the “Handelsregister”. The Court stated that while it is possible in principle for the costs incurred in connection with establishing a GmbH to be imposed on the company as formation expenses, there were no formation expenses of this kind in this case because the company had not been newly established. Instead, it had merely grown from a UG to a GmbH by virtue of a capital increase.

Lawyers who are experienced in the field of company law can advise on selecting the most suitable corporate form.

For more informations:

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

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GesellschaftsrechtPressemitteilungen
news-3396 Wed, 05 Dec 2018 11:46:33 +0100 GRP Rainer Rechtsanwälte – Experience in trade mark protection https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-in-trade-mark-protection.html Plagiarism and counterfeit products cause immense economic damage within the European Union. This makes it all the more important for businesses to take consistent measures to protect their trade marks.

According to a report by the European Union Intellectual Property Office (EUIPO), counterfeit products and plagiarism are responsible for annual losses to the tune of some 60 billion euros within the EU. In Germany alone, the annual loss incurred by manufacturers as a result of product piracy is approx. 8.3 billion euros. The report details that the classic examples of counterfeit products are still leather goods, watches, shoes, perfume and cosmetics. That being said, many other products are also affected by counterfeiting.

Unfortunately, there is expected to be an increase in the number of counterfeit products going forward. This is infuriating not only for consumers who fall victim to counterfeiting or plagiarism but also manufacturers of branded products. They incur a substantial economic loss as well as potentially damage to their image due to the inferior quality of counterfeit branded products. We at the commercial law firm GRP Rainer Rechtsanwälte note that this demonstrates the huge importance for businesses of effective trade mark protection and prosecuting trade mark infringements, and that these issues will become increasingly significant in future. Our lawyers have a great deal of experience in the field of trade mark law and prosecuting trade mark infringements.

The first step is to assess whether the mark has the distinctive character required for its registration as a trade mark. It is then necessary to determine the territorial scope of trade mark protection – whether it be domestic, EU wide or extend beyond the borders of the EU – and file trade mark registration applications accordingly.

To protect the mark, it is necessary to take consistent action against trade mark infringements. Examples of possible legal measures include formal written warnings, but also injunction suits and damages claims. Businesses can turn to lawyers who are experienced in the field of intellectual property law in order to protect their trade mark rights and be able to react appropriately in response to infringements.

On the other hand, it is possible for existing trade marks rights to be infringed completely unwittingly. Legal expertise is equally important in these instances.

For more informations:

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

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Gewerblicher RechtsschutzPressemitteilungen
news-3394 Tue, 04 Dec 2018 13:34:45 +0100 GRP Rainer Rechtsanwälte: Criteria for assessing whether GmbH managing directors are subject to mandatory social security contributions https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-criteria-for-assessing-whether-gmbh-managing-directors-are-subject-to-mand.html According to a decision of the Bundessozialgericht, Germany’s federal court of appeals for social security matters, GmbH managing directors are ordinarily deemed to be employees of the company and hence subject to mandatory social security contributions.

It is not uncommon for disputes to arise over whether GmbH managing directors are subject to mandatory social security contributions. We at the commercial law firm GRP Rainer Rechtsanwälte note that it can prove to be a costly affair for the company if it is determined that the managing director is subject to mandatary social security contributions but no payments have been made to this end and therefore supplementary contributions become payable.

In rulings from 14 March 2018, the Bundessozialgericht set out clear criteria for assessing whether GmbH managing directors are subject to mandatory social security contributions (Az.: B 12 KR 13/17 R and B 12 R 5/16 R). According to these judgments, the managing director of a GmbH is ordinarily deemed to be an employee of the company. The Court held that they are only considered not to be employees if they own more than 50 per cent of the company’s share capital and are thus majority shareholders. The Court went on to state that if they have a 50 per cent stake in the share capital, a presumption in favour of self-employed status is then only possible if the articles of association clearly confer a full blocking minority on the managing director and this enables him or her to prevent instructions from being issued by the general meeting of the shareholders. The Court therefore concluded that the decisive factor for the managing director’s status as self-employed is whether he or she has the legal power to determine the fate of the company by influencing the general meeting of the shareholders.

In doing so, the Bundessozialgericht has set high standards for recognizing managing directors as self-employed. It also made clear that the crucial factor in assessing whether the managing director is an employee and thus subject to mandatory social security contributions is not how he or she acts in relation to third parties. Even if he or she is granted broad powers and freedoms, this alone does not indicate that they are self-employed. Instead, it is the extent to which the managing director has recourse to legally enforceable measures for the purposes of influencing resolutions of the general meeting of the shareholders that is the key factor.

Companies should keep in mind the issue of mandatory social security contributions for managing directors as early as when agreements are being drafted in order to avoid unpleasant surprises at a later date. Lawyers who are experienced in the field of company law can provide companies as well as shareholders with expert advice on matters that go beyond mandatory social security contributions.

For more informations:

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

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GesellschaftsrechtPressemitteilungen
news-3392 Mon, 03 Dec 2018 09:07:47 +0100 D&O insurance policies need not cover illegal payments made following onset of insolvency https://www.grprainer.com/en/news-and-press/detail/news/do-insurance-policies-need-not-cover-illegal-payments-made-following-onset-of-insolvency.html It is not necessary for a D&O insurance policy to cover payments made by the insured managing director after the onset of insolvency. That was the verdict of the Oberlandesgericht (OLG) Düsseldorf, the Higher Regional Court of Düsseldorf.

We at the commercial law firm GRP Rainer Rechtsanwälte note that managing directors who go on to make payments following the onset of their company’s insolvency or over-indebtedness are obliged to indemnify the company to the extent that the payments were not informed by the due diligence expected of a prudent businessman. Many businesses take a proactive response to reducing this substantial risk by taking out a D&O insurance policy for their managing directors and executive bodies. However, the D&O insurance policy does not need to pay out if the managing director goes on to make illegal payments following the onset of insolvency. That was the verdict of the Oberlandesgericht Düsseldorf in a landmark ruling from 20 June 2018 (Az.: I-4 U 93/16).

In the instant case, an insolvency administrator had successfully brought a claim against the managing director of a GmbH, a type of German private limited liability company, on account of the company having executed payments amounting to 200,000 euros after the onset of insolvency. The managing director asserted her rights under her D&O insurance policy in relation to this claim and demanded indemnity.

Her action was unsuccessful. The OLG Düsseldorf held that a liability claim pursuant to sec. 64 of the GmbH-Gesetz, Germany’s Limited Liability Companies Act, is not comparable to an insurance claim for compensation arising from financial loss. It ruled that it is an indemnity claim of a sui generis nature that is designed to serve exclusively the interests of the creditors of an insolvent company as a whole. The Court stated that the company ultimately does not suffer a financial loss as a result of payments made after the onset of insolvency in breach of insolvency law, since an existing claim is settled; payments to preferential creditors were said to be detrimental only to the remaining creditors. The Court noted, however, that D&O insurance is not meant to protect the interests of creditors.

It went on to cite the fact that various possible objections that are recognized under tort law are not provided for in sec. 64 of the GmbH-Gesetz as another reason why a liability claim pursuant to sec. 64 of the GmbH-Gesetz is not comparable to a claim for compensation. The OLG concluded that even though this legal position could lead to coverage gaps in the D&O insurance policy, the insurer does not need to pay out.

In light of this ruling by the OLG Düsseldorf, existing D&O insurance policies ought to be reviewed to ensure the best possible protection for executive bodies. Lawyers who are experienced in the field of company law can advise businesses and managers.

For more informations:

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

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GesellschaftsrechtPressemitteilungen
news-3386 Mon, 26 Nov 2018 09:43:50 +0100 Managing director liable despite settlement clause in termination agreement https://www.grprainer.com/en/news-and-press/detail/news/managing-director-liable-despite-settlement-clause-in-termination-agreement.html A managing director may be liable towards the company despite a settlement clause in the termination agreement. That was the verdict of the Oberlandesgericht (OLG) München, the Higher Regional Court of Munich.

The company and the managing director may agree to a settlement clause within the framework of a termination agreement according to which the parties will be indemnified from and against all mutual claims. We at the commercial law firm GRP Rainer Rechtsanwälte note that neither party can invoke this clause if it fraudulently conceals material circumstances. It was with this in mind that the OLG München held a managing director liable in spite of a settlement clause and awarded the company damages in a ruling from 18 April 2018 (Az.: 7 U 3130/17).

In the instant case, the defendant was the sole managing director of a GmbH, a type of German private limited liability company. The managing director’s service contract stipulated, among other things, that he required written approval from the general meeting of the shareholders prior to concluding rental agreements with a term of longer than three years or an annual rent of more than 24,000 euros. In December of 2014, the managing director nonetheless entered into a ten-year rental agreement with an annual rent of around 51,000 euros without the consent of the general meeting. In April of 2015, the managing director’s service contract was terminated by mutual agreement. At the same time, the parties agreed to a settlement clause pursuant to which all claims arising from the service contract were considered settled.

At this point in time, the company had no knowledge of the rental agreement that had recently been concluded. It later reached a settlement with the renter to terminate the rental agreement in return for payment of compensation in the amount of 60,000 euros. The company subsequently sued its former managing director for payment of this amount.

The OLG München awarded damages, ruling that the defendant should not have entered into the rental agreement without the general meeting’s written approval and that in doing so he had breached his obligations to the company. The fact that he was said to have acted in the interests of the company did not affect this outcome. The Court went on to state that the settlement clause in the termination agreement equally did not preclude the claim for damages. The OLG München noted that while the claim did indeed fall within the ambit of the clause because the latter concerned all claims of the parties, the defendant could not rely on it because he had exceeded his authority, then fraudulently concealed this and failed to come clean even at a later date,

Lawyers who are experienced in the field of company law can advise companies as well as managing directors.

For more informations:

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

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GesellschaftsrechtPressemitteilungen
news-3384 Fri, 23 Nov 2018 09:10:00 +0100 BGH: Beer cannot be promoted as “bekömmlich” https://www.grprainer.com/en/news-and-press/detail/news/bgh-beer-cannot-be-promoted-as-bekoemmlich.html Beer cannot be promoted as “bekömmlich”, i.e. “wholesome” or “agreeable” (in terms of its digestibility). That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from 17 May 2018 (Az.: I ZR 252/16). This description was said to be in violation of the Health Claims Regulation.

We at the commercial law firm GRP Rainer Rechtsanwälte note that the Health Claims Regulation prohibits drinks with an alcohol content of more than 1.2 per cent from featuring health claims.

The dispute before the BGH concerned a brewery’s advertising that promoted various kinds of beer with an alcohol content of more than 1.2 per cent as “bekömmlich”. A consumer protection organization had taken the view that this promotional description was unlawful and decided to file a lawsuit. The action was successful before the court of final instance.

The BGH held that when it comes to alcoholic drinks with an alcohol content of more than 1.2 per cent, health claims are prohibited as part of not only the labelling but any advertising. The Court ruled that a statement or description is not only deemed to be a health claim if it promises an improvement in health, but also if it merely suggests that consuming the food or drink in question does not have any adverse effects on health that could be associated with its consumption in other circumstances. It went on to state that consumers understand “bekömmlich” to mean “gesund” (“healthy”), “zuträglich” (“agreeable” or “beneficial”) and “leicht verdaulich” (“easily digestible”), and this gives the impression that the drink is well tolerated when consumed long term. The BGH concluded that it was not apparent from the advertising that the term “bekömmlich” refers only to the taste.

In doing so, the BGH followed the jurisprudence of the Court of Justice of the European Union (ECJ). The latter ruled as early as 2012 that ambiguous statements in relation to alcoholic drinks are unlawful. The ECJ prohibited winemakers from promoting their wine using the term “bekömmlich” on the basis of its low acidity. However, back in 2011 the BGH deemed “bekömmlich” acceptable in reference to a herbal liqueur.

Following the BGH’s more recent ruling, breweries as well as other food and drink producers will have to adjust their advertising practices. Advertising featuring health claims can easily give rise to violations of competition law, potentially resulting in formal warnings, damages claims or injunction suits. Lawyers who are versed in the field of competition law can assist businesses in fending off or enforcing claims arising from violations of competition law.

For more informations: https://www.grprainer.com/en/legal-advice/competition-law.html

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PressemitteilungenWettbewerbsrecht
news-3382 Thu, 22 Nov 2018 09:05:29 +0100 OLG Köln: Unfair advertising due to false statements about discount promotion https://www.grprainer.com/en/news-and-press/detail/news/olg-koeln-unfair-advertising-due-to-false-statements-about-discount-promotion.html Caution is in order if someone is offering discounts on “fast alles”, i.e. “almost everything”. Advertising featuring a discount promotion that excludes large sections of the product range from the discount is misleading and unfair. That was the verdict of the Oberlandesgericht (OLG) Köln, the Higher Regional Court of Cologne.

Misleading advertising or misleading business activities are a violation of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Act Against Unfair Competition. We at the commercial law firm GRP Rainer Rechtsanwälte note that violations of competition law can give rise to injunctions suits or damages claims.

In a judgment from 20 April 2018, the 6th Civil Division of the OLG Köln ruled that a furniture store is not allowed to advertise that it is offering a 30 per cent discount on almost everything if in fact a large proportion of the product range is excluded from the discount (Az.:6 U 153/17).

The furniture store had boasted in a brochure about a “30 per cent discount on almost everything”. The German word “fast” (“almost”) was printed vertically in the crease of the folded brochure in considerably smaller and less conspicuous writing than the rest of the text. While the Division left open the question of whether this layout was enough to significantly mislead consumers in its own right, the numerous exceptions to the discount promotion proved to be too much for the judges. For instance, the products of 40 producers were excluded from the discount promotion in the same way as goods that were already reduced or offers from the furniture store’s brochures, advertisements, mailings etc.

It was mentioned in a speech bubble in the brochure that the discount applied to upholstery furniture, wall units, kitchens, bedrooms as well as many other product categories – “einfach fast alles” (“almost everything”). The OLG held that this list was misleading to consumers, stating that the latter could only construe the list to meant that the discount applies without restrictions, with the exception of product categories not included in the list, e.g. garden furniture.

The Division went on to further criticize the statements on display in the advertising relating to the discount as being objectively wrong and a brazen lie without reasonable justification, and that these kinds of false statements could not be rectified by an explanatory note.

Lawyers who are experienced in the field of competition law can advise on matters pertaining to this field of law and enforce or fend off claims arising from violations of competition law.

For more informations:

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

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WettbewerbsrechtPressemitteilungen
news-3380 Wed, 21 Nov 2018 12:54:44 +0100 Reclaiming advances on commission payments requires transparent presentation https://www.grprainer.com/en/news-and-press/detail/news/reclaiming-advances-on-commission-payments-requires-transparent-presentation.html A company demanding that advances on commission payments be repaid by the commercial agent needs to be able to provide detailed reasoning in support of this action as well as present a complete calculation for the recovery of the sums in question.

Commercial agents receive a commission for the deals they broker from the company in whose name they conclude agreements. It is also customary for advances to be paid on this commission or for the parties to agree on what is referred to in German as a “Stornoreserve”, i.e. a reserve sum in case the agreement with clients eventually falls through. However, we at the commercial law firm GRP Rainer Rechtsanwälte note that even under these circumstances the advances on commission payments cannot be automatically clawed back. That was the verdict of the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt, in a ruling from 17 August 2017 (Az.: 6 U 214/16).

In the instant case, the financial services company filing the action had concluded a commercial agency agreement with the defendant. It was agreed that in the case of contracts featuring so-called “Haftungszeiten”, i.e. indemnity periods, the right to claim commission would not arise until the client had paid a certain number of premiums. Following the cancellation of various contracts, the company demanded repayment of the amounts that had been advanced on commission payments, which amounted to almost 30,000 euros in total. The action was unsuccessful before the respective regional court, and the Oberlandesgericht Frankfurt also gave clear indications that it intended to dismiss the claim for lack of reasonable prospects of success.

It held that, according to the relevant statutory provisions, the commercial agent is required to repay advances on commission in the event that the client fails to pay and the company is not responsible for this. Accordingly, commission entitlements in the case of agreements featuring indemnity periods only arise if the client has paid a certain number of premiums. The company filing the action demanded that advances on commission from cancelled agreements be paid back. However, the OLG Frankfurt ruled that it had not been able to present a complete calculation for the recovery of the sums in question.

It went on to say that it is necessary for each sum being reclaimed that arises from a cancellation to be substantiated and transparently presented. It is not enough to simply number the claims according to their value and allocate them to a contract brokered by the commercial agent. The Court held that the company must demonstrate that it took every measure necessary to preserve the agreement. In addition, a transparent calculation of the individual cancellation claims needs to be made out in writing. In the present case, the OLG found that it was not clear why numerous cancellations had been allocated to not only one but several recovery sums. All in all, the Court was not able to work out how the amount being reclaimed had come about.

Disputes in relation to commercial agency agreements, e.g. regarding claims for compensation or reclaiming commission, are common. Lawyers who are experienced in the field of commercial law can offer advice.

For more informations:

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

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HandelsvertreterrechtPressemitteilungen
news-3378 Tue, 20 Nov 2018 08:42:32 +0100 EGC: A word mark consisting of two letters can be registered as an EU trade mark https://www.grprainer.com/en/news-and-press/detail/news/egc-a-word-mark-consisting-of-two-letters-can-be-registered-as-an-eu-trade-mark.html It is possible even for a word mark consisting solely of two letters to be registered as an EU trade mark. This was confirmed by the EGC in rulings from 24 April 2018 (Az.: T-207/17 and T-208/17).

We at the commercial law firm GRP Rainer Rechtsanwälte note that commercial symbols need to be sufficiently distinct from the products and services of other providers in order for them to be capable of being registered as a trade mark and to benefit from the protection that comes with trade mark registration. The General Court of the European Union (EGC) has now ruled that it is possible for a word mark to have the required distinctive character even if it consists of only two letters.

A US company had successfully applied to register a word mark made up of two letters in conjunction with a figurative mark with the European Union Intellectual Property Office (EUIPO) as an EU trade mark for various goods and services, including printers and cartridges. A Polish company requested that this mark be declared invalid, arguing that it was descriptive and lacked distinctive character. The petition was rejected by the EUIPO and the claim dismissed by the EGC.

The line of reasoning employed by the Polish company bringing the claim, i.e. that it is especially common in the field of technology for short combinations of letters to be used as descriptions for products and services, failed to convince. The EGC held that a mark is not considered to only have descriptive character simply because it consists of two letters. It found that the contested combination of letters is not often used and nor is it perceived as a designation that lacks distinctive character. The mark was also said to serve as an indication of the origin of the products to the relevant audience. Moreover, the plaintiff had failed to demonstrate that at the time of the mark’s registration another business made use of similar or identical marks to market their products. The Court therefore concluded that the registered EU trade mark need not be declared invalid.

Trade marks are of considerable value to businesses because they give rise to a high degree of brand recognition among consumers. Consequently, trade mark protection is also important. However, before a commercial mark can be registered as a trade mark, it needs to be assessed whether the necessary requirements for registration have been met and whether or not rights associated with existing trade marks would be infringed. Lawyers who are experienced in the field of intellectual property law can advise on matters relating to trade mark registration and protection.

For more informations:

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

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MarkenrechtPressemitteilungen
news-3376 Mon, 19 Nov 2018 09:47:54 +0100 OLG Düsseldorf imposes large fine in response to vertical price fixing https://www.grprainer.com/en/news-and-press/detail/news/olg-duesseldorf-imposes-large-fine-in-response-to-vertical-price-fixing.html The Oberlandesgericht (OLG) Düsseldorf, the Higher Regional Court of Düsseldorf, has imposed a fine of 30 million euros on a drugstore chain and in doing so significantly increased the fine set by the Bundeskartellamt, Germany’s Federal Cartel Office.

Price-fixing agreements are normally in breach of antitrust law. These types of arrangements are not only illegal in the context of horizontal relationships between competitors but also with respect to vertical relationships between producers and distributors. We at the commercial law firm GRP Rainer Rechtsanwälte note that price-fixing arrangements of this kind restrict competition and thus violate the Gesetz gegen Wettbewerbsbeschränkungen (GWB), Germany’s Act Against Restraints of Competition.

In the instant case, the Bundeskartellamt had already imposed a fine of around five million euros on the drugstore chain as early as December of 2015 due to vertical price-fixing arrangements in relation to the distribution of roast coffee. These investigations were part of a larger series of proceedings dealing with vertical price-fixing agreements between a coffee roaster and various retailers, including the drugstore chain in question. On 1 March 2018, the Bundeskartellamt announced that the OLG Düsseldorf had increased the fine to 30 million euros (Az.: V-4 Kart 3/17 OWi).

The OLG Düsseldorf found that there was sufficient evidence indicating that between 2005 and 2008 the drugstore chain had been party to relevant the price control system, pursuant to which the businesses were said to have agreed on supply prices in particular. Consequently, the producer was protected from price abuses on the part of the drugstore, which in turn received information regarding its competitors’ pricing behaviour. The Court concluded that these vertical price-fixing arrangements ultimately also had horizontal implications at the national level for the sale of an important commodity such as coffee.

The OLG Düsseldorf’s ruling is not yet final. The drugstore chain already announced on 12 March 2018 that it had filed an appeal on a point of law with the Bundesgerichtshof, Germany’s Federal Supreme Court, and that it cannot fathom the allegations of illegal price fixing.

Violations of antitrust law or competition law can be met with severe penalties. However, violations are by no means always as obvious as in the case of illegal price-fixing arrangements. Even seemingly insignificant contractual clauses can give rise to a violation and lead to certain consequences. Lawyers who are experienced in the fields of antitrust law and competition law can offer businesses advice.

For more informations:

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

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KartellrechtPressemitteilungen
news-3374 Fri, 16 Nov 2018 11:29:11 +0100 Unfair exploitation of a product’s reputation by imitating its well-known design https://www.grprainer.com/en/news-and-press/detail/news/unfair-exploitation-of-a-products-reputation-by-imitating-its-well-known-design.html A product’s good reputation can be deemed to have been unfairly exploited even if the presentation of the product has been imitated but the word mark has not been infringed. That was the verdict of the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt.

We at the commercial law firm GRP Rainer Rechtsanwälte note that if goods or services are offered that are an imitation of a competitor’s products, this constitutes a violation of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act. According to a ruling of the Oberlandesgericht Frankfurt from 28 February 2018, imitating the features of a well-known product may constitute unfair exploitation of the latter even if the word mark on the counterfeit product is distinct from the one featured on the imitated product (Az.: 6 W 14/18).

In the case in question, a company from Malaysia had presented an adhesive at a specialist trade fair, the presentation and colour scheme of which bore a strong resemblance to a well-known product made by a German manufacturer. The only thing distinguishing the products was the different inscriptions on the tubes. The OLG Frankfurt ruled that the German company was entitled to sue for an injunction.

The Court held that the German manufacturer’s product had competitive originality. It went on to explain that this kind of originality presupposes that the product’s specific form or certain characteristics are capable of informing consumers about its commercial origin or special features. The Court noted that it is the overall impression created by the design that matters. These requirements were found to have been met in the case of the adhesive, whose overall impression was said to be influenced mainly by the shape of the tube, the colour scheme and the screw cap. The OLG ruled that these features are familiar to consumers, stating that the characteristic combination of colours and shape give rise to a high degree of brand recognition independent of the word mark. It expanded on this point by noting that it is possible to identify the product even if the writing is not yet legible.

The OLG concluded that the Asian company’s product was an imitation because it featured the imitated product’s defining characteristics such as the shape of the tube and colour scheme in a very similar form. All in all, the Asian company was deemed to be unfairly exploiting the good reputation enjoyed by its German competitor’s product. To this end, the Court held that it is sufficient for consumers to project the original product’s good reputation onto the imitation.

Lawyers who are experienced in the field of competition law can advise on matters pertaining to trademark law as well as in relation to violations of the UWG.

For more informations:

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

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WettbewerbsrechtPressemitteilungen