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, 20 Aug 2019 07:18:16 +0200 Tue, 20 Aug 2019 07:18:16 +0200 TYPO3 news-3537 Thu, 25 Jul 2019 08:48:15 +0200 Costs incurred amending tax returns can be offset against estate tax https://www.grprainer.com/en/news-and-press/detail/news/costs-incurred-amending-tax-returns-can-be-offset-against-estate-tax.html Heirs are obligated to amend or subsequently file the testator’s incomplete or missing tax returns.

A testator who conceals income from the tax authorities may be setting the heirs up for problems. While the latter are not responsible for the testator’s tax evasion, we at GRP Rainer Rechtsanwälte note that they are obliged to amend the tax returns.

To this end, it may be advisable to consult expert advisers to ensure no mistakes are made. The costs incurred in obtaining tax advice can be offset against estate tax according to a ruling of the Finanzgericht Baden-Württemberg from May 15, 2019 (Az. 7 K 2712/18).

The plaintiff, as the sole heir, had amended the testator’s tax returns for several years. These amendments concerned supplementary declarations of investment income generated in Switzerland. She applied to have the costs incurred as a result of this offset in her estate tax return.

The Finanzgericht ruled in her favor. It held that costs incurred in obtaining tax advice are to be accounted for as estate liabilities. The Court went on to state that the heir had been obligated to submit supplementary tax returns and in doing so discharged an obligation owed by the testator. The respective tax office has lodged an appeal against the decision.

Lawyers experienced in tax law can offer advice.

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

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ErbschaftssteuerPressemitteilungen
news-3535 Mon, 22 Jul 2019 09:00:34 +0200 Unlawful advertising featuring health claims https://www.grprainer.com/en/news-and-press/detail/news/unlawful-advertising-featuring-health-claims.html Health claims in relation to food items must be supported by accepted scientific evidence. Otherwise, as was recently confirmed by the Oberlandesgericht (OLG) Köln, the Higher Regional Court of Cologne, the advertising is unlawful.

According to the EU Health Claims Regulation, health claims in relation to food items are only lawful if they are backed by accepted scientific evidence. We at the commercial law firm GRP Rainer Rechtsanwälte note that they are otherwise in breach of the Regulation and competition law.

This was confirmed by a ruling of the OLG Köln from June 21, 2019 (Az. 6 U 181/18). In the case in question, a food company had promoted a tea as having a positive impact on the ability to conceive. Among the claims made in the advertising was that the tea contained plant substances used in alternative medicine to promote ovulation, while other plant substances were said to be relaxing and act as an aphrodisiac.

The OLG Köln granted an injunction suit filed by a competition association, ruling that the advertising was to be understood as meaning that the tea alleviates problems that prevent conception and thus improves the chances of conceiving. The Court concluded, however, that the company had failed to furnish the necessary scientific evidence.

Unlawful advertising can lead to legal sanctions. Lawyers experienced in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3530 Fri, 05 Jul 2019 09:06:16 +0200 BaFin – Binary options still off limits to retail investors https://www.grprainer.com/en/news-and-press/detail/news/bafin-binary-options-still-off-limits-to-retail-investors.html It remains illegal in Germany to sell binary options to retail clients according to an administrative act of Germany’s Federal Financial Supervisory Authority, the BaFin.

With binary options, it’s either make or break. Yet underlying these “bets” is a complex and opaque financial product. We at GRP Rainer Rechtsanwälte note that it was due to their high-risk nature that the ESMA decided to prohibit the marketing, distribution, and sale of binary options to retail investors in the EU.

While the ESMA’s measure expired on July 1, 2019, the BaFin maintained the prohibition on offering and selling binary options to retail clients in Germany in an administrative act applicable from July 2, 2019.

The BaFin justified its decision with reference to the high risks as well as significant concerns regarding investor protection, particularly with regard to calculating the performance of binary options and the underlying asset, noting that it is difficult for retail investors to accurately assess the risk-return profile. Moreover, since binary option providers act as the direct counterparty, this may give rise to a conflict of interests and manipulation.

Despite the prohibition, there are still criminal providers intent on ripping off retail investors. Lawyers experienced in capital markets law can offer advice.

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

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KapitalmarktrechtPressemitteilungen
news-3529 Thu, 04 Jul 2019 10:00:02 +0200 Voluntary disclosure of unreported income in estate https://www.grprainer.com/en/news-and-press/detail/news/voluntary-disclosure-of-unreported-income-in-estate.html Unreported income in an estate can become a problem for the heirs. If it has been concealed from the tax authorities, it may still be possible to rescue the situation with a voluntary declaration for tax evasion.

An estate can carry a high risk potential for many an heir if the testator deposited untaxed assets in foreign accounts as a way of concealing it from the German tax authorities. While the heirs are not liable for the testator’s tax evasion, we at the commercial law firm GRP Rainer Rechtsanwälte can report that they may be guilty of an offence if they fail to disclose the untaxed income to the relevant tax office. To avoid personally committing tax evasion, heirs who have concealed unreported income in an estate can still submit a voluntary declaration leading to immunity from tax evasion charges.

If an heir is aware of unreported income in the estate, he or she must correct the testator’s tax returns as well as inform their fellow heirs and those entitled to a share of the compulsory portion about the testator’s tax evasion. Failure to do so may render them liable to prosecution for fraud. This all means that heirs may be faced with a lot if the estate includes unreported income. While it might therefore be high time to come clean with the tax office, a voluntary declaration can only lead to immunity from tax evasion charges if it is complete and submitted on time, i.e. the tax evasion must not yet have been discovered by the authorities. To this end, any information that is relevant from a tax perspective needs to be presented to the tax office.

For a layperson, it is almost impossible to meet the requirements for a voluntary declaration to lead to immunity. Even minor errors can render a voluntary declaration invalid in its entirety and lead instead to the possibility of a prosecution for tax evasion. Since every case is different and inheritance matters can be particularly complicated, standard templates found online are of no use because they are not capable of sufficiently accounting for the specific circumstances of a given case. Mistakes are then virtually inevitable, and the end result is a voluntary declaration that does not lead to immunity.

That is why lawyers experienced in the fields of tax and criminal tax law ought to be consulted. They know what information a voluntary declaration needs to include for it to lead to immunity and can exercise discretion in helping to prepare it.

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

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SelbstanzeigePressemitteilungen
news-3527 Wed, 03 Jul 2019 09:39:44 +0200 Unfair advertising – No price comparison without price quotations https://www.grprainer.com/en/news-and-press/detail/news/unfair-advertising-no-price-comparison-without-price-quotations.html Price comparisons featuring tariffs both with and without price quotations are considered to be a form of unlawful comparative advertising and in breach of competition law. That was the verdict of the Oberlandesgericht (OLG) Köln, the Higher Regional Court of Cologne.

Whether it be travel, insurance, or other services, there is a tendency for consumers to compare offers online in the age of the internet. Comparison sites offering this service are easy to come by. That said, comparative advertising is considered to be unlawful if, as part of a price comparison, products featuring price quotations are contrasted with products without any indication of price. We at the commercial law firm GRP Rainer Rechtsanwälte can report that this was the verdict of the Oberlandesgericht Köln in a ruling from April 12, 2019, case file number 6 U 191/18.

The case before the OLG Köln concerned a legal dispute between an online comparison site and an insurer. The comparison site had listed and compared the products of various providers. Because the insurer rejected collaborating with the site, its products were ultimately listed without any indication of prices. The insurer demanded that it be completely removed from the list, arguing that this was an unlawful comparative advertisement due to it missing material information in the form of prices.

While the claim was unsuccessful at first instance, the OLG Köln ruled in favor of the insurer. The Court held that the advertisement was in breach of the Gesetz gegen den unlauteren Wettbewerb (UWG), i.e. Germany’s unfair competition act, and therefore unlawful. It went on to state that comparative advertising without price quotations is not unlawful as a matter of principle, and the comparison might still have been acceptable if it had not been limited in scope to price but instead also included various other product or service features. This was based on the assumption that comparative advertising need not be comprehensive, as the average consumer is said to be aware that this kind of advertising is meant to emphasize the benefits of a given advertiser.

In the instant case, however, the Court found that from the point of view of consumers, the products were being compared purely on the basis of price, since the site promoted itself as comparing the price of services. The site’s presentation, among other things, placed special emphasis on the price, with the result that it was to be seen as the key criterion according to the Court.

Violations of competition law may be met with severe penalties. Lawyers experienced in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3526 Tue, 02 Jul 2019 09:00:22 +0200 GRP Rainer Rechtsanwälte – Report on post-contractual non-compete clauses https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-post-contractual-non-compete-clauses.html Companies usually agree to post-contractual non-compete clauses with their managing directors. These need to be balanced to ensure they don’t end up null and void in their entirety.

Companies are better positioned to protect their legitimate interests when business and managing director go their separate ways if the company agreed to a post-contractual non-compete clause with the executive officer. These clauses typically stipulate that following his or her departure from the company, the managing director will not work for or on behalf of competitors or establish his or herself by any other means as a competitor to their former employer. In return, the managing director normally receives compensation for committing not to compete.

We at the commercial law firm GRP Rainer Rechtsanwälte note that it is important for post-contractual non-compete clauses to be balanced, otherwise the agreement could be null and void in its entirety. The departing managing director’s interest in pursuing work is equally as valid as the company’s right to protect its interests, which is why a post-contractual non-compete agreement must not unduly restrict the managing director’s freedom to choose his or her occupation. This is clear from an indicative ruling of the Oberlandesgericht (OLG) München, the Higher Regional Court of Munich, from August 2, 2018 (Az.: 7 U 2107/18).

The OLG München held that post-contractual non-compete clauses are deemed to be null and void if they do not serve the legitimate interests of the company and unfairly restrict the time, location and subject of the managing director’s professional practice. The value of any compensation for the period of non-competition was said to be irrelevant. In the case in question, a GmbH had agreed to a post-contractual non-compete clause with its managing director. This prohibited the latter from performing any kind of activity for a rival business for a period of one year.

The OLG München ruled that this agreement went too far, noting that it prohibited the managing director from performing any form of activity for a rival business. This meant, for instance, that he could not even work as a caretaker. The Court concluded that this rendered the non-compete agreement null and void as a whole and not merely in part.

When concluding post-contractual non-compete clauses, it is vital to ensure they are proportionate and not too broad in scope. Lawyers with experience in company law can offer advice.

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

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GesellschaftsrechtPressemitteilungen
news-3524 Thu, 27 Jun 2019 10:30:09 +0200 Tax dispute – Additional income from large celebration https://www.grprainer.com/en/news-and-press/detail/news/tax-dispute-additional-income-from-large-celebration.html A celebration organized by an employer for an employee may give rise to taxable income according to the Finanzgericht Münster.

While an employer organizing a big celebration for an employee is certainly a welcome sign of appreciation, we at GRP Rainer Rechtsanwälte caution that excessive festivities may result in additional taxable income for the employee.

In the instant case, a foundation had invited people to a big all-expenses-paid celebration to mark the chairman of the board of trustees reaching a milestone birthday. The tax office recorded all the payments made by the foundation due to the celebration as income from self-employment, taking it into account for income tax purposes.

However, in a ruling from 02.20.2019, the Finanzgericht Münster held that only 10% instead of 100% of the foundation’s expenses should have been treated as taxable income (Az. 7 K 4084/16 E). It attributed 90% of the festivities to a celebration of the foundation, which had been in charge of the guest list. The Court went on to state that of the 261 guests, 25 were personal guests of the employee celebrating his birthday, noting that this was not insignificant. The Court therefore concluded that 10% of the expenses were to be considered taxable income.

Lawyers experienced in tax law can advise in the event of tax disputes.

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

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SteuerstreitPressemitteilungen
news-3522 Tue, 25 Jun 2019 14:28:38 +0200 CJEU bolsters protected designations of origin https://www.grprainer.com/en/news-and-press/detail/news/cjeu-bolsters-protected-designations-of-origin.html Evoking protected designations of origin may be unlawful. That was the verdict of the Court of Justice of the European Union (CJEU) in a ruling from May 2, 2019 (Az.: C-614/17).

The CJEU has confirmed its position that evoking protected designations of origin may be unlawful. The Court had already expressed this view in the past year with respect to the protected geographical designation of origin “Scotch whisky”. This time the case concerned Spanish cheese instead of Scotch whisky. We at the commercial law firm GRP Rainer Rechtsanwälte can report that the CJEU decided, once again, to bolster protected designations of origin.

According to the CJEU’s ruling, the use of figurative signs that evoke a geographical area associated with a protected designation of origin may be unlawful. In the instant case, there were three types of cheese with labels evoking the fictional character Don Quixote de la Mancha. Cheese made from sheep’s milk from the Spanish region of Mancha is the subject of a protected designation of origin, but the three cheeses in question were not covered by this.

A foundation tasked, among other things, with managing and protecting the protected designation of origin brought an action against the producer of the three cheeses. It argued that the use of the labels and names constituted an unlawful evocation as defined in the regulation on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

At first and second instance, the Spanish courts took the view that the while the images and names used to market the three types of cheese did evoke the region of Mancha where the producer is established, they did not necessarily evoke the cheese protected by the geographical designation of origin.

The CJEU held, however, that the use of figurative signs may itself amount to an evocation of a registered designation. The Court noted that the Regulation protects registered names against “any evocation”, with “any” said to reflect that it is possible to evoke something using a word element or figurative element. It went on to state that the decisive criterion for establishing whether an element evokes a registered name is whether the element in question is capable of directly triggering in consumers’ minds the product featuring this name. The Court added that it is also possible for the evocation to be unlawful if the producer is established in the region of the protected designation of origin.

Lawyers experienced in IP law can advise on matters pertaining to copyright and trademark law.

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

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MarkenrechtPressemitteilungen
news-3520 Mon, 24 Jun 2019 10:03:48 +0200 Antitrust infringement – Advertising needs to inform about goods excluded from a discount https://www.grprainer.com/en/news-and-press/detail/news/antitrust-infringement-advertising-needs-to-inform-about-goods-excluded-from-a-discount.html If certain products are excluded from a promotional advertising campaign, this needs to be clearly indicated. The Landgericht (LG) Arnsberg, the Regional Court of Arnsberg, has ruled that this otherwise amounts to an antitrust infringement.

There are a number of potential pitfalls with advertising campaigns that can easily give rise to an antitrust infringement with all of the associated legal implications. For this reason, we at the commercial law firm GRP Rainer Rechtsanwälte urge advertisers to always keep in mind Germany’s unfair competition act, the Gesetz gegen den unlauteren Wettbewerb (UWG).

A ruling of the Landgericht Arnsberg from December 6, 2018 shows how easy it is to commit an antitrust infringement of this kind (Az.: 8 O 73/18). In the case in question, a furniture dealer had advertised an exchange promotion in a flyer. This promised consumers an exchange premium of up to 500 euros for their old furniture. However, this was qualified by an asterisk pointing to part of the small print, which stated that the promotion was only valid for new purchases up until a certain date. Offers on the dealer’s website were excluded from the promotion.

A competition association brought an action against this. It considered the advertising dishonest due to the reference to the website, which it claimed meant that information important to consumers’ decision was being withheld from them. It argued that the flyer should have set out which products were excluded from the promotion.

The LG Arnsberg granted the action, ruling that the advertising in the flyer was in breach of competition law for being dishonest, because it withheld important information from consumers that they needed to make an informed commercial decision. The Court went on to note that the articles excluded from the discount promotion represented essential information to consumers, and that withholding this information was liable to mislead consumers into arriving at a decision that they would otherwise not have reached.

The promotional flyer was designed to incentivize consumers to visit the furniture store. The Court held that the discount on the entire product range had been advertised in an eye-catching manner, but that consumers also required information on the numerous items that were excluded from the promotion. A reference to the website for further information was said to be lawful only in exceptional cases where it is not possible to include all of the information on the promotional flyer.

Lawyers experienced in competition law can advise on enforcing and fending off claims arising from antirust infringements.

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

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WettbewerbsrechtPressemitteilungen
news-3519 Fri, 21 Jun 2019 09:44:16 +0200 BGH – Giving away pharmacy vouchers when filling prescriptions violates competition law https://www.grprainer.com/en/news-and-press/detail/news/bgh-giving-away-pharmacy-vouchers-when-filling-prescriptions-violates-competition-law.html Pharmacies are not allowed to give their customers small gifts when filling their prescription. The Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, has ruled that this is in breach of resale price maintenance regulations for medicinal products.

We at the commercial law firm GRP Rainer Rechtsanwälte note that Germany has resale price maintenance regulations in place for prescription drugs to ensure uniform resale prices and prevent competition. In two judgments from June 6, 2019, the Bundesgerichtshof held that these price maintenance regulations must not be circumvented by giving away vouchers of relatively low value, as this is in breach of competition law (Az.: I ZR 206/17 and I ZR 60/18).

In one of the cases, customers were given a “Brötchen-Gutschein”, i.e. a bread roll voucher, for a neighboring bakery when having their prescriptions filled. In the other case, customers received a one-euro voucher from the pharmacy that they could redeem with their next purchase. Prescription drugs were explicitly excluded from the promotion. In both cases, actions were brought against the pharmacies by a competition association arguing that they were in breach of competition law due to the vouchers.

After the courts of appeal arrived at different rulings, the BGH subsequently granted both actions. The Court’s 1st Civil Panel, whose jurisdiction includes hearing claims arising under Germany’s unfair competition act (Gesetz gegen den unlauteren Wettbewerb, (UWG)), ruled that competition law prohibits giving away low-value promotional gifts to customers, such as a bread roll voucher or one-euro voucher, when filling their prescriptions for medicinal products that require a prescription, since this breaches resale price maintenance regulations.

The Court went on to cite the German law on advertising for health-related products and services, the Heilmittelwerbegesetz (HWG), ruling that gifts or any other form of promotional giveaways are only permissible in exceptional circumstances expressly provided for in law. This general prohibition on this form of advertising was said to represent a rule governing market behavior as defined in the UWG. The BGH held that consumers ought not to be materially influenced by the prospect of promotional gifts and that violating this rule is likely to appreciably harm the interests of market operators. The Court noted that this applies to low-value promotional gifts as well. It held that in amending the HWG, the legislature’s intention was to prevent unwelcome price competition between pharmacies. The BGH concluded that the clear statutory prohibition on any form of promotional gift in connection with prescription drugs must not be circumvented on the basis that it has no appreciable effect and thus is not deemed to be anti-competitive; resale price maintenance must be strictly adhered to.

Lawyers experienced in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3517 Tue, 18 Jun 2019 09:00:57 +0200 OLG Zweibrücken bolsters copyright vis-à-vis public authorities https://www.grprainer.com/en/news-and-press/detail/news/olg-zweibruecken-bolsters-copyright-vis-a-vis-public-authorities.html According to a ruling of the Oberlandesgericht (OLG) Zweibrücken, the Higher Regional Court of Zweibrücken, from February 28, 2019, public authorities must not publish works protected by copyright without the approval of the creator (Az.: 4 U 37/18).

With this ruling, the Oberlandesgericht Zweibrücken has strengthened copyright law. We at the commercial law firm GRP Rainer Rechtsanwälte can report that a public authority must not publish a work protected by copyright without obtaining the approval of the creator. The OLG Zweibrücken clarified that copyright protection enjoyed by a personal work shall only be suspended due to a public interest in information if the owner of the exclusive usage rights approves the work being used in connection with what is referred to as an “amtliches Werk” (official work).

A municipality had published the extract of a map on its website pursuant to building regulations in order to meets its information obligations with respect to the general public. The operator of a city map service with the exclusive usage rights to the map under copyright law brought an action against this. The plaintiff provides online maps, including for cities. Users can have specific map extracts displayed free of charge or obtain appropriate licenses for any use above and beyond this, including, in particular, for publishing parts of maps on websites.

The defendant company had neither requested nor received such a right of use. Moreover, it did not accept an offer to conclude a licensing agreement. For this reason, the city map service ultimately sued for an injunction. The Landgericht (regional court) dismissed the claim. In doing so, it attached greater importance to the general public’s interest in disclosure than copyright protection.

Yet this ruling was later overturned by the OLG Zweibrücken. It held that the Landgericht was correct in its assessment that the map extract enjoyed copyright protection as an image of a scientific and technical nature, since it represented a personal intellectual creation. The plaintiff was entitled as the owner of the exclusive usage rights to the map to bring an action for an injunction, as its right to make the work publicly available had been infringed. The Court went on to state that copyright protection was not excluded pursuant to sec. 5 of the German Copyright Act (Urheberrechtsgesetz, UrhG). This provision provides that official works do not enjoy copyright protection. The map extract was found not to be an official work by the OLG, which ruled that it had not been originally produced for official purposes and, accordingly, enjoyed copyright protection. The Court held that this could not be subsequently changed and the personal creator “expropriated” to bring about a royalty-free compulsory license.

Lawyers experienced in the field of IP law can advise on matters relating to copyright.

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

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UrheberrechtPressemitteilungen
news-3515 Mon, 17 Jun 2019 08:42:21 +0200 Violation of GDPR cannot give rise to formal warning under competition law https://www.grprainer.com/en/news-and-press/detail/news/violation-of-gdpr-cannot-give-rise-to-formal-warning-under-competition-law.html A violation of the General Data Protection Regulation (GDPR) cannot give rise to a formal warning as provided for under competition law for violations of Germany’s Unfair Competition Act (UWG). That was the verdict of the LG (Regional Court of) Stuttgart.

It has been just over a year since the GDPR came into force, yet whether violations of the Regulation can give rise to formal warnings for competition violations or not remains a contentious legal issue. We at GRP Rainer Rechtsanwälte can report, however, that the LG Stuttgart recently took the view, in line with the LG Bochum and LG Wiesbaden, that this is not possible.

In the case in question, a distributor selling automotive parts online was issued a formal warning by an interest group for violating the GDPR. The LG Stuttgart dismissed the action for an injunction in a judgment from May 20, 2019 (Az.: 35 O 68/18 KfH), ruling that the GDPR already sets out an exhaustive list of penalties for violations. As such, the plaintiff was not entitled to assert any claims based on UWG infringements, as this would contradict the provision in the GDPR and thus not be compatible with the primacy of EU law.

Nevertheless, the matter has yet to be clarified by Germany’s Federal Supreme Court. Lawyers experienced in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3514 Fri, 14 Jun 2019 08:19:16 +0200 Infringement of indication of geographical origin in whisky dispute https://www.grprainer.com/en/news-and-press/detail/news/infringement-of-indication-of-geographical-origin-in-whisky-dispute.html A distillery based in Baden-Württemberg is not allowed to feature the word “Glen” in the name of its whisky. The Landgericht (LG) Hamburg, the Regional Court of Hamburg, found this to be too reminiscent of the protected geographical indication “Scotch Whisky”.

Geographical indications of origin can be afforded similar protection to trademarks, because consumers may come to associate a certain level of quality with designations of origin. We at the commercial law firm GRP Rainer Rechtsanwälte note that “Scotch Whisky” is one such example of a designation of origin that enjoys this kind of protection. Consumers must not be misled as to the origin of a product. In a case that came before the LG Hamburg, however, the Court concluded that the distillery in question had done just that by including the term “Glen” in the name of its whisky distilled in Germany.

The dispute between a Swabian distillery, the name of whose whisky includes the term “Glen”, and the Scottish Whisky Association had already reached the ECJ last year. The Scottish Whisky Association argued that consumers associate the term “Glen” with Scotch whisky and might therefore be misled by this misconception.

The ECJ held that whether using the term “Glen” amounts to a reference to a protected geographical designation essentially comes down to whether consumers associate it specifically with “Scotch Whisky”. The ECJ went on to state that while it was for the Landgericht Hamburg to rule on this matter, the context in which the disputed element finds itself could not be taken into account, e.g. information on the label about the origin of the product.

The LG Hamburg has since ruled that when confronted with the word “Glen” the average consumer thinks of Scotch whisky, and that a reference on the label to the origin of the product does nothing to change this impression, particularly following the ECJ’s earlier ruling that this must not be considered when looking at whether consumers have been misled, since the protection afforded by the Regulation would otherwise be too easily undone.

The jury might still be out on this legal battle, as an appeal to the Oberlandesgericht (OLG) Hamburg, the Higher Regional Court of Hamburg, is still possible.

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

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

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MarkenrechtPressemitteilungen
news-3513 Thu, 13 Jun 2019 11:07:07 +0200 OLG München on post-contractual non-compete clauses for managing directors https://www.grprainer.com/en/news-and-press/detail/news/olg-muenchen-on-post-contractual-non-compete-clauses-for-managing-directors.html Post-contractual non-compete clauses for managing directors are standard practice. But should these clauses go beyond the scope of what is necessary, they may be deemed to be null and void in their entirety.

It is common practice for a company to agree to a post-contractual non-compete clause with its managing director. The terms of this typically prohibit the managing director from competing with his or her former employer for a specified period of time following their departure from the company, whether this be through working for a rival firm or self-employed work. Post-contractual non-compete clauses of this kind are meant to protect the legitimate interests of the company.

Post-contractual non-compete clauses must nonetheless be balanced. We at the commercia law firm GRP Rainer Rechtsanwälte note that, on the one hand, they are supposed to protect the legitimate interests of the company; and, on the other hand, they ought not to unduly restrict the managing director’s freedom to choose his or her occupation. For this reason, a post-contractual non-compete clause should not be too broad in scope. In an indicative ruling by the Oberlandesgericht (OLG) München, the Higher Regional Court of Munich, from August 2, 2018, the Court noted that this may render the non-compete clause null and void in its entirety (Az.: 7 U 2107/18).

In the case in question, a GmbH had agreed to a post-contractual non-compete clause with its managing director. This prohibited the managing director from engaging in any form of activity for a rival business for a period of one year. After the managing director’s employment agreement was terminated, the managing director wanted to move to a rival firm and was able to enforce this by means of a preliminary injunction. The GmbH’s lawsuit was unsuccessful.

The OLG München held that while post-contractual non-compete clauses for GmbH managing directors are possible as a matter of principle, a non-compete clause is deemed to be null and void if it does not serve the legitimate interests of the company and unfairly restricts the time, location and subject of the managing director’s professional practice and economic activity. In other words, a non-compete clause that is too broad in scope is invalid according to the OLG. The value of the compensation for non-competition was said to be irrelevant to this consideration.

In the instant case, the non-compete clause was found to be too broad in scope because it prohibited the managing director from engaging in any form of activity for a competitor, including, e.g., working as a caretaker.

As such, post-contractual non-compete clauses for managing directors can be said to hinge on striking the right balance. Lawyers experienced in company law can offer advice.

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

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GesellschaftsrechtPressemitteilungen
news-3510 Tue, 11 Jun 2019 08:04:58 +0200 Unreported income in foreign accounts – Immunity still possible through voluntary disclosure https://www.grprainer.com/en/news-and-press/detail/news/unreported-income-in-foreign-accounts-immunity-still-possible-through-voluntary-disclosure.html Voluntary disclosure leading to immunity from tax evasion charges is still a current topic. It remains the only way of returning to a state of tax compliance.

Voluntary disclosure is still a means of obtaining immunity from tax evasion charges. While there has been a continuing downward trend since the rules were tightened, 2018 still saw 1727 voluntary declarations submitted to the tax authorities according to a survey of Germany’s 16 state ministries of finance (of the “Länder”) conducted by the German business newspaper Handelsblatt. The survey covered voluntary declarations relating to unreported income in foreign accounts, with only Lower Saxony not distinguishing between voluntary declarations associated with foreign accounts and those with a different background.

Despite the fact that the number of voluntary declarations has been in decline since the peak in 2014, the assumption is that there is still untaxed income from foreign accounts. We at the commercial law firm GRP Rainer Rechtsanwälte note that while it remains possible to submit a voluntary declaration and return to a state of tax compliance, this should not be put off any longer. This is because voluntary disclosure can only result in immunity from tax evasion charges if the declaration is complete and was submitted on time, which is to say, the tax evasion must not yet have been discovered by the tax authorities.

Due to the automatic exchange of fiscal information, which around 100 countries participated in last year, it is almost impossible to conceal untaxed, unreported income abroad from the exchequer. That said, it will take some time for the information to be forwarded to and evaluated by the competent tax offices. This period can be used to submit a voluntary declaration just in time.

However, the requirements for an effective voluntary declaration are strict, which is why it should not be prepared alone or with help of standard templates. Each case is different, making it nearly impossible to account for all of the events and transactions that are relevant to a given case. Even minor errors can result in voluntary disclosure not leading to immunity.

To avoid these kinds of mistakes, lawyers experienced in the field of tax law ought to be consulted. They know what information needs to be included in the voluntary declaration and can ensure that it meets all the requirements set out by the legislature.

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

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SelbstanzeigePressemitteilungen
news-3509 Fri, 07 Jun 2019 11:09:40 +0200 Antitrust law – Narrow best price clauses for online hotel bookings are permissible https://www.grprainer.com/en/news-and-press/detail/news/antitrust-law-narrow-best-price-clauses-for-online-hotel-bookings-are-permissible.html On June 4, 2019, the 1st Cartel Panel of the OLG Düsseldorf ruled that narrow best price clauses for online hotel bookings are permissible (Az.: VI – Kart 2/16 (V).

Hotel rooms are frequently booked online via booking portals. For this reason, some portals commit hotels to always offering the most favorable conditions on their portal. This practice was later modified, with hotels only obliged not to offer rooms cheaper on their own websites than on the booking portal. We at GRP Rainer Rechtsanwälte can report, however, that the Bundeskartellamt prohibited these best price clauses for violating antitrust law.

The OLG Düsseldorf has now overturned the Bundeskartellamt’s decision from December 22, 2015, ruling that the modified “narrow” best price clauses are permissible. In reaching its decision, the 1st Cartel Panel relied on a hotel and customer survey it had arranged. Accordingly, the Court found that the clauses do not restrict competition, but rather are necessary to ensure a fair and balanced exchange of services between the portals and the contracted hotels. The OLG held that the clauses could prevent customers from being dishonestly redirected from a portal to the hotel website.

Lawyers with experience in antitrust law can offer advice.

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

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KartellrechtPressemitteilungen
news-3507 Wed, 05 Jun 2019 11:05:42 +0200 OLG Hamm on using a registered trademark https://www.grprainer.com/en/news-and-press/detail/news/olg-hamm-on-using-a-registered-trademark.html Anyone registering a trademark needs to actually use it. According to a ruling of the Oberlandesgericht (OLG) Hamm, the Higher Regional Court of Hamm, it may be sufficient to use a wordmark as part of an advertising slogan (Az.: 4 U 42/18).

Anyone who has registered a trademark ought to actually use it, otherwise it may be declared to be revoked or cancelled on request. According to section 26 of the German Trademark Act (Markengesetz), asserting rights arising from a registered trademark or upholding its registration depends on it having been seriously used by its proprietor for the goods or services in respect of which it is registered, unless there are legitimate grounds for non-use. We at the commercial law firm GRP Rainer Rechtsanwälte note that failure to seriously use the trademark in question following registration may result in its cancellation.

For a wordmark to be considered to have been seriously used, it may be enough for the proprietor to use it as part of an advertising slogan, even if the proprietor has not named any products after the trademark. That was the verdict of the Oberlandesgericht Hamm in a ruling from January 24, 2019 (Az.: 4 U 42/18).

The OLG Hamm had to rule on a dispute between a hobby brewer and a brewery. The brewery had registered a term as a wordmark and used it in advertising slogans since the 1960s without interruption or dispute. It was this type of use that was the deciding factor in the German Patent and Trademark Office’s (Deutsches Patent- und Markenamt) decision to approve an application for registration in the trademark register in 2010. However, the hobby brewer requested that the trademark be cancelled, noting that the term was being used not for one of the brewery’s beers but instead only for an ingredient; this meant that it was not being used in manner that preserves its rights.

While the claim was successful at first instance before the Landgericht Bochum, the Regional Court of Bochum, the OLG Hamm dismissed it. The Court stated that the brewery had featured the slogan in its advertising for decades, and that it was on the basis of this type of use that the mark had been registered in the trademark register. It went on to say that if this type of use continues after registration in the trademark register, this should be enough to preserve the wordmark. The OLG Hamm therefore concluded that a request for cancellation of the wordmark could not be entertained.

Lawyers experienced in the field of IP law can advise on matters relating to trademark law.

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

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MarkenrechtPressemitteilungen
news-3506 Tue, 04 Jun 2019 09:16:09 +0200 Steinhoff accounting scandal – Shareholders can pursue claims for damages https://www.grprainer.com/en/news-and-press/detail/news/steinhoff-accounting-scandal-shareholders-can-pursue-claims-for-damages.html At the end of 2017, Steinhoff International Holding was rocked by an accounting scandal that sent its share price plummeting. Steinhoff shareholders can pursue claims for damages.

We at GRP Rainer Rechtsanwälte can report that it was in December of 2017 that the furniture group Steinhoff admitted to accounting irregularities, triggering a massive slide in its share price. The report by the auditing firm tasked with investigating what happened has since been made available. It states that Steinhoff’s turnover and profits were being artificially inflated for years.

Shareholders experienced a massive drop in the value of their shares. They can now pursue damages claims against Steinhoff, as the Group failed to inform them in due time or in full about the accounting irregularities and mislead them about the intrinsic value of the business. Claims for damages are a possibility for those shareholders who acquired their shares in Steinhoff prior to the ad-hoc announcement on December 5, 2017 regarding irregularities.

The Landgericht Frankfurt has since issued an order to refer the matter and open model case proceedings under the German Capital Markets Model Case Act (KapMuG). Shareholders can join the class action lawsuit against Steinhoff.

Lawyers experienced in company law can offer advice.

For more informations: https://www.grprainer.com/en/legal-advice/capital-markets-law/stock-corporation-law.html

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AktienrechtPressemitteilungen
news-3504 Fri, 31 May 2019 10:43:55 +0200 Misleading advertising - Free from harmful substances does not mean compliance with limits https://www.grprainer.com/en/news-and-press/detail/news/misleading-advertising-free-from-harmful-substances-does-not-mean-compliance-with-limits.html Advertising featuring the term “schadstofffrei”, i.e. free from harmful substances, is misleading if the product, despite not exceeding acceptable limits, has some concentration of harmful substances.

Misleading advertising violates competition law. We at the commercial law firm GRP Rainer Rechtsanwälte note that actions are misleading if they give rise to misconceptions among a substantial proportion of the relevant public, e.g. regarding certain characteristics of a product.

One example of this is when a product is promoted as being “schadstofffrei”, even though it does in fact have some concentration of harmful substances and merely complies with legal limits or requirements set out by private institutions. Consumers have been said to understand the term “schadstofffrei” as it appears in advertising to mean that the goods advertised do not contain any trace of harmful substances, which is to say they cannot contain any substance that might even only in theory be liable to harm consumers. That was the verdict of the Oberlandesgericht (OLG) Stuttgart, the Higher Regional Court of Stuttgart, in a judgment from October 25, 2018 (Az.: 2 U 34/18). According to the ruling, advertising something as being free from harmful substances is also misleading if it gives the impression that there has been comprehensive testing for harmful substances, even though the product has not in fact been tested for the presence of certain harmful substances.

In the instant case, the vendor had promoted a mattress as being “schadstofffrei”, despite it containing small amounts of antimony. Yet consumers were said to expect from the advertising a product that is completely free from harmful substances. The OLG Stuttgart held that it is irrelevant whether the concentration of harmful substances present is considered by industry experts to be negligible. It stated that consumers are not obliged to follow the risk assessment of specialist experts; the former arrive at their market choices independently and are the only ones entitled to set standards when it comes to their decisions. The prohibition on misleading claims, descriptions and statements is meant to safeguard them from making consumer choices on the basis of misconceptions. The Court went on to note that consumers have in recent years moved towards adopting a more critical stance vis-à-vis limit values, especially in relation to harmful substances, and are therefore looking to quality standards above and beyond sound science. Accordingly, the OLG Stuttgart concluded that free from harmful substances is not to be equated with compliance with limits.

Misleading advertising violates competition law and can therefore lead to formal warnings or injunctions suits. Lawyers with experience in the field of competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3502 Wed, 29 May 2019 11:35:07 +0200 Misleading advertising - Notice about risks and side effects https://www.grprainer.com/en/news-and-press/detail/news/misleading-advertising-notice-about-risks-and-side-effects.html Enhancing or promoting products in a way that is misleading to consumers may be in breach of competition law. That was the verdict of the OLG Dresden in relation to “risks and side effects”.

Medicinal products are required to have a standard notice encouraging people to read the information leaflet in the packaging and ask their doctor or pharmacist about the risks and side effects. We at GRP Rainer Rechtsanwälte note, however, that this warning notice does not belong on dietary supplements or cosmetics. According to a ruling of the OLG Dresden from 01.15.2019, this misleadingly enhances consumer perceptions of the products (Az.: 14 U 941/18).

In the instant case, the defendant’s dietary supplements and cosmetics were “promoted” online with the warning notice about risks and side effects. A competition association sued, claiming that it gave the misleading impression that these were medicinal products with corresponding therapeutic effects.

The OLG Dresden agreed, deeming the warning notice misleading and anti-competitive; there was a risk of consumers attributing a greater effect to these products than comparable goods, despite this not being the case. As such, consumers were being misled about key features.

Lawyers experienced in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3500 Fri, 24 May 2019 09:50:16 +0200 BAG – Claiming severance pay in the event of the insolvency https://www.grprainer.com/en/news-and-press/detail/news/bag-claiming-severance-pay-in-the-event-of-the-insolvency.html There is often little time separating insolvency and termination of employment contracts, with the issue of how to comply with an employee’s right to severance pay in the event of insolvency often proving a source of controversy.

In a judgment from March 14, 2019, the Bundesarbeitsgericht (BAG), Germany’s Federal Labor Court, delivered a welcome ruling for employees (Az.: 6 AZR 4/18). According to this, the right to severance pay is a debt incumbent on the insolvent company’s estate if the insolvency administrator is the first to submit a petition to dissolve the employment relationship, and this is then dissolved by a court. We at the commercial law firm GRP Rainer Rechtsanwälte note that priority must then be given to satisfying the claim for severance pay, i.e. the employee receives the full amount, and not merely installments, due to him or her as severance pay from the insolvency estate. Following the BAG’s decision, this also applies if notice terminating the employment relationship was first issued by the employer.

In the instant case, the employer and later insolvency debtor had terminated the employment relationship with the plaintiff in December of 2014 with effect from January 15, 2015. While the proceedings before the court of first instance concerned with protection against unfair dismissal were ongoing, the employer notified the plaintiff’s attorney in an informal letter of its alternative claim aimed at dissolving the employment relationship in return for a severance payment. On April 1, 2015, insolvency proceedings were initiated against the company. The plaintiff subsequently asserted his claims against the insolvency administrator. The latter would later also submit a petition during proceedings before the Arbeitsgericht (Labor Court) in June of 2016 to dissolve the employment relationship in return for a severance payment.

In the end, the employment contract was dissolved in return for a severance payment. However, according to the Arbeitsgericht and Landesarbeitsgericht Rheinland-Pfalz (the Higher Regional Court of Rhineland-Palatinate), the claim for severance pay ought to have been included in the insolvency administrator's list of claims and thus not settled in advance as a debt incumbent on the insolvency estate. The plaintiff’s appeal against this was successful. The BAG held that failure to deliver meant the notification of the dissolution agreement from January 26, 2015 was not yet pending in court. Moreover, this had not been remedied. The Court went on to state that the petition for dissolution, as the material act for the purposes of classification under insolvency law, was first filed and made pending in court by the defendant insolvency administrator during the oral hearing of the Arbeitsgericht on June 9, 2016.

Lawyers with experience in the field of insolvency law can advise debtors and creditors in the event of insolvency.

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

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Restrukturierung InsolvenzPressemitteilungen
news-3497 Fri, 17 May 2019 08:38:37 +0200 BFH – Rate of inheritance tax applies to total amount https://www.grprainer.com/en/news-and-press/detail/news/bfh-rate-of-inheritance-tax-applies-to-total-amount.html In the case of inheritance tax, the taxable amount is not split up and subject to differential tax rates. That was the verdict of the BFH, Germany’s Federal Fiscal Court, in ruling from February 20, 2019 (Az.: II B 83/18).

When it comes to inheritance and gift tax, certain tax allowances apply depending on the degree of kinship. The key factor in calculating the tax owed is the value of the assets transferred. We at GRP Rainer Rechtsanwälte note that the relevant tax rate is applied to the total amount. The BFH concluded that the taxable acquisition cannot be further split up and subject to differential tax rates.

The plaintiff had been gifted a co-ownership share in two properties. The tax office applied a tax rate of 11 percent from a defined scale. The plaintiff wanted the tax to be calculated such that a tax rate of 7 percent would apply to the partial amount of 75,000 euros, and the tax rate of 11 percent would then only apply to the remaining sum exceeding this partial amount: 171,800 euros.

The BFH rejected this, ruling that splitting the taxable acquisition into partial amounts and subjecting it to differential tax rates is precluded by the hardship allowance under sec. 19 para. 3 of the German Act on Inheritance and Gift Tax (ErbStG).

Experienced tax lawyers can advise on matters pertaining to inheritance and gift tax.

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

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ErbschaftssteuerPressemitteilungen
news-3496 Thu, 16 May 2019 10:56:01 +0200 Antitrust violations – European Commission imposes fines on automotive suppliers https://www.grprainer.com/en/news-and-press/detail/news/antitrust-violations-european-commission-imposes-fines-on-automotive-suppliers.html The European Commission has imposed fines totaling 368 million euros on two automotive suppliers for violations of antitrust law.

The EU competition watchdog imposed the fines in response to illegal arrangements that the cartelists had entered into concerning the supply of safety belts, airbags and steering wheels. A third supplier was granted immunity pursuant to the leniency program for informing the authorities about the cartel.

According to the European Commission, the cartel members entered into illegal arrangements in order to increase their profits from selling life-saving component parts, such as airbags and safety belts. To this end, they were said to have exchanged confidential business information and coordinated their market behavior in relation to car companies. The arrangements are likely to have had a considerable impact on the European car market. The EU competition authorities claimed that the cartel arrangements have damaged the competitiveness of the European automotive industry and thus also ultimately given rise to adverse effects for consumers.

In reaching a settlement, the parties conceded to having been party to a cartel. The European Commission reduced the fines due to their cooperation. The decision is part of extensive investigations into cartels in the automotive supply industry, with other fines having already been imposed.

We at the commercial law firm GRP Rainer Rechtsanwälte can report that, following this decision by the European Commission, individuals and companies who were harmed by the illegal cartel arrangements can assert their claims for damages before national courts in the EU. This is because the Commission’s decision serves as proof that anticompetitive conduct occurred, which means it is no longer necessary to prove the offense, and all that is required now is to assert individual claims for damages.

Violations of antitrust or competition law may be severely punished and met with stiff penalties. That being said, the arrangements are by no means always as obvious as, for instance, in the case of illegal price-fixing agreements. Even individual contractual clauses are capable of falling foul of the law. That is why it is advisable to have agreements reviewed with a view to their implications from the perspective of competition law. Lawyers with experience in the fields of antitrust and competition law can advise businesses and assist in enforcing and fending off claims in the event of violations.

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

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KartellrechtPressemitteilungen
news-3493 Mon, 13 May 2019 11:02:06 +0200 OLG Frankfurt – Misleading advertising featuring superlatives https://www.grprainer.com/en/news-and-press/detail/news/olg-frankfurt-misleading-advertising-featuring-superlatives.html Take care when using superlatives in advertising. A ruling by the OLG Frankfurt, the Higher Regional Court of Frankfurt, from February 14, 2019 demonstrates their potential to easily mislead, as well as violate competition law (Az. 6 U 3/18).

We at GRP Rainer Rechtsanwälte note that adverts featuring misleading information are in breach of competition law. Particular attention should therefore be paid to how one uses superlatives, especially given the OLG Frankfurt’s recent ruling.

When traveling, it is practical to have suitcases that weigh as little as possible. It is with this in mind that a suitcase manufacturer decided to promote its luggage items at an international trade fair with the banner “World’s Lightest”. The suitcases could also be ordered online on the company’s websites. However, a competitor noticed that its own suitcases were no heavier, and issued the rival firm with a warning.

The case ended up before the OLG Frankfurt, which held that advertising featuring the words “World’s Lightest” is misleading if the luggage items in question are not the lightest in the world when compared to products from other manufacturers with similar volumes and dimensions. In these instances, statements of this kind were said to be unfair and misleading, even when used as an eye-catcher at a fair.

Lawyers with experience in competition law can offer advice.

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

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WettbewerbsrechtPressemitteilungen
news-3491 Tue, 07 May 2019 11:16:07 +0200 Changes to trademark law – Markenrechtmodernisierungsgesetz comes into effect https://www.grprainer.com/en/news-and-press/detail/news/changes-to-trademark-law-markenrechtmodernisierungsgesetz-comes-into-effect.html The Markenrechtmodernisierungsgesetz (MaMog), i.e. the Trademark Law Modernization Act, entered into effect in Germany on January 14, 2019, introducing a number of changes to trademark law.

The MaMog brings German trademark law into line with the EU Directive. We at the commercial law firm GRP Rainer Rechtsanwälte note that this is part of the process of continuing to harmonize trademark law within the European Union and designed to bolster the rights of trademark proprietors.

Despite not turning German trademark law on its head when it came into force, the MaMog has introduced several changes, among the most significant of which is that trademarks are no longer required to be capable of being displayed graphically. Signs can now be displayed in any appropriate form using technology that is in the public domain, e.g. with audio or image files. This will in turn lead to new forms of presentation, with it now being possible to register trademarks for sounds, motion/movement marks, holograms and multimedia marks.

Another major innovation is the introduction of the certification mark to German trademark law. It has been possible to obtain an EU trademark for this since as early as 2017. A certification mark affords trademark protection to quality seals and test marks, such as those concerned with safety standards, organic production or fair trade. In the case of certification marks, it is not their function as an indicator of origin but rather as a guarantee that takes center stage. They need to be capable of guaranteeing certain characteristics of goods or services as well as distinguishing them from products for which no such guarantee exists. The trademark proprietors must be neutral and are not allowed to personally offer the goods they have certified.

The MaMoG also introduces new absolute grounds for refusal to German trademark law. Protected geographical indications and protected designations of origin must now be considered as absolute grounds for refusal. This particularly applies with respect to food items, wine and spirits.

Another new element is that it is possible to apply for licenses to be entered into the register. The holder of an exclusive license can then personally file lawsuits in response to trademark violations if the proprietor of the trademark fails to bring a legal action within a reasonable period of time after having been formally requested to do so.

Lawyers with experience in the field of IP law can advise on the changes to trademark law.

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

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MarkenrechtPressemitteilungen
news-3489 Mon, 06 May 2019 09:33:38 +0200 BGH – Breach of copyright in the case of photographs of works of art https://www.grprainer.com/en/news-and-press/detail/news/bgh-breach-of-copyright-in-the-case-of-photographs-of-works-of-art.html According to a ruling of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, even if works of art are no longer protected by copyright, taking pictures and publishing photos of them may be in breach of copyright.

70 years following an artist’s death, his or her works are no longer protected by copyright. We at the commercial law firm GRP Rainer Rechtsanwälte note that this means they are in the public domain and meant to be available for use by anybody. However, it is clear from a ruling by the BGH from December 20, 2018 that this does not necessarily give someone carte blanche to publish photos of these works of art on the internet (Az.: I ZR 104/17).

The case in question began with a museum filing a lawsuit. The museum had displayed pictures that were in the public domain, subsequently had them photographed and later published them in a catalog. The photographer had assigned the publication rights to the museum. Moreover, the museum had expressly prohibited visitors from taking pictures of the paintings on display.

Notwithstanding the prohibition, the defendant took pictures of the works of art in the museum and published them on an online encyclopedia. He also scanned photos from the museum catalog and uploaded these to the internet as well. The BGH ruled that in doing so the man had, on the one hand, violated the ban on photography that he was required to comply with pursuant to a contractual agreement with the museum, and, on the other hand, was in breach of copyright.

By publishing the pictures scanned from the catalog online, the defendant was found by the BGH to be in breach of copyright. The BGH also held that a photograph of a painting enjoys protected status as a photograph, reasoning that the photographer has to make a number of decisions when taking the photograph regarding its presentation, e.g. with regards to location/position, lighting, distance, angle, cut, etc. The Court concluded that this represented a kind of personal intellectual effort worthy of protection.

The BGH went on to state that the defendant should not have taken his own photos in the museum, as this was in violation of the ban on photography that he was required to comply with as per the contractual agreement and which formed an operative part of the general terms and conditions. The museum was therefore entitled to obtain injunctive relief.

Copyright infringements may give rise to formal warnings as well as claims for injunctive relief or damages. Lawyers with experience in the field of IP law can advise on matters pertaining to copyright law.

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

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UrheberrechtPressemitteilungen
news-3488 Fri, 03 May 2019 07:59:09 +0200 Resale price maintenance – Bundeskartellamt imposes fine https://www.grprainer.com/en/news-and-press/detail/news/resale-price-maintenance-bundeskartellamt-imposes-fine.html The Bundeskartellamt, Germany’s Federal Cartel Office, has imposed a total fine of around 13.4 million euros on a bicycle wholesaler for entering into resale price maintenance arrangements with 47 retailers.

Resale price maintenance entails the producer requiring its customers to sell the goods at a fixed price or not go below a certain price. We at the commercial law firm GRP Rainer Rechtsanwälte note that, as a consequence, resale price maintenance hampers competition and consistently violates the Gesetz gegen Wettbewerbsbeschränkungen (GWB), Germany’s Act against Restraints of Competition.

A recent investigation by the Bundeskartellamt concluded that a bicycle wholesaler had committed such a violation. As disclosed by the former on January 29, 2019, the wholesaler reportedly entered into agreements with its member companies concerning the retail prices of certain bicycle models. These were said to have prevented the independent retailers from undercutting a minimum selling price specified by the wholesaler, with the latter also checking for compliance with the pricing policy. According to the Bundeskartellamt, the overall effect of this was to significantly impede price competition among the members of the purchasing cooperative and thus ultimately have a negative impact on end consumers.

While noting that temporary group-wide price controls are possible within a narrow framework, e.g. in order to implement joint promotional campaigns, the Bundeskartellamt found that the boundaries had clearly been overstepped in this case, resulting in a situation analogous to a distribution cartel among the participating merchants. Some of the pricing arrangements dated back to 2007 and only came to an end when the wholesaler’s business premises were searched in February of 2015.

Agreements between companies that restrict or impede competition are prohibited under the GWB. Price-fixing arrangements are typically considered to be unlawful agreements of this kind.

Violations of competition or antitrust law may be met with severe penalties. Yet violations are by no means always as obvious as in the case of illegal price-fixing arrangements. Even individual clauses within agreements may be deemed to be anticompetitive and give rise commensurate sanctions. That is why it is advisable to have agreements reviewed for violations of competition or antitrust law.

Lawyers with experience in the fields of competition and antitrust law can offer advice.

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

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KartellrechtPressemitteilungen
news-3486 Thu, 02 May 2019 11:16:58 +0200 Bundeskartellamt imposes fine due to unlawful supply association https://www.grprainer.com/en/news-and-press/detail/news/bundeskartellamt-imposes-fine-due-to-unlawful-supply-association.html The Bundeskartellamt, Germany’s Federal Cartel Office, has imposed a fine of around 1.4 million euros on an asphalt manufacturer for entering into illegal arrangements in connection with supply associations.

According to an announcement by the Bundeskartellamt, it has imposed a fine of around 1.4 million euros on an asphalt manufacturer for being party to an illegal cartel agreement reported to have encompassed unlawful arrangements relating to price, territory, customers and quotas for the supply of construction companies between 2005 and 2013. Another company involved in the arrangements went unpunished for participating in the leniency program. The proceedings against other companies were dropped.

According to the Bundeskartellamt, the asphalt manufacturers began coordinating on orders and forming supply associations as early as the end of the 1990s. It found these supply associations unnecessary in terms of their capacity in many cases or that the need for their existence had not been reviewed. The Bundeskartellamt claimed that since 2005 more than 100 supply associations have emerged from the arrangements in question. The cartel watchdog deemed the supply associations unnecessary, arguing that the orders were generally capable of being fulfilled by one of the companies. Accordingly, the decision to form supply associations served primarily to stabilize the market as a means of avoiding price and bidding wars among themselves, thus hindering fair competition.

We at the commercial law firm GRP Rainer Rechtsanwälte note that while supply associations and other forms of cooperation between companies are not unlawful as a matter of principle, they must always operate within the existing legal framework in order to avoid violating antitrust or competition law. Because violations of antitrust law are by no means always obvious, it is advisable for companies to obtain legal advice before agreeing to enter into supply associations or other forms of cooperation.

Violations of competition and antitrust law are consistently met with severe penalties. This is true not only for cases involving illegal arrangements relating to price or territory, but also for violations with the respect to which it is much less apparent that an offense has been committed. For instance, even individual contractual clauses may be in violation of applicable laws. Lawyers with experience in the fields of antitrust and competition law can advise companies and assist in enforcing or fending 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-3484 Mon, 29 Apr 2019 08:43:51 +0200 GRP Rainer Rechtsanwälte – Report on extraordinary termination of a commercial agency agreement https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-extraordinary-termination-of-a-commercial-agency-agreement.html Either party to a commercial agency agreement can give the other extraordinary notice of termination for good cause. One important example of good cause is where there is a breakdown in the relationship of trust.

As in the case of other agreements, either party to a commercial agency agreement can give the other extraordinary notice of termination with immediate effect for good cause. Our experience at the commercial law firm GRP Rainer Rechtsanwälte has revealed that a common point of contention with respect to extraordinary termination is whether there is in fact good cause justifying termination of the contractual relationship.

Following the legislature’s failure to provide a clear definition of “good cause” justifying extraordinary notice of termination, the Oberlandesgericht (OLG) München, Munich’s Higher Regional Court, delivered a ruling on February 8, 2018 that has brought greater clarity to this issue. The Court held that if the relationship of trust between the parties to the agreement has broken down irretrievably, the commercial agency agreement can be extraordinarily terminated because any further collaboration can then no longer be reasonably expected in light of all the circumstances. In every instance, the outcome is contingent on a detailed assessment of each individual case (Az.: 23 U 1932/17).

In the instant case, the two parties had concluded a commercial agency agreement. This set out in writing their common understanding that the plaintiff’s husband would carry out the role of commercial agent on her behalf. In doing so, he saved extensive data records on his personal computer without authorization. The company viewed this as a breach of trust and issued notice of extraordinary dismissal. The plaintiff, having refused to readily accept this, demanded payment of bonuses, commission as well as an indemnity payment due to commercial agents.

The OLG München concluded that the notice of extraordinary dismissal was effective. It ruled that downloading and saving the data records onto a personal computer had not been necessary for the purposes of carrying out the role of commercial agent, and that the plaintiff needed to take responsibility and be held accountable for her husband’s conduct. The Court went on to state that downloading and saving the files without authorization had resulted in the irretrievable breakdown of the relationship of trust between the parties. According to the OLG München, this meant that it was no longer reasonable to expect the parties to continue working together until the end of the ordinary notice period. Moreover, the misconduct was said to have been so severe that no prior written warning was necessary.

Lawyers with experience in the field of commercial law can offer advice should legal disputes arise.

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

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HandelsvertreterrechtPressemitteilungen
news-3482 Wed, 24 Apr 2019 11:28:33 +0200 GRP Rainer Rechtsanwälte – Assessment of suitable arrangements for business succession https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-assessment-of-suitable-arrangements-for-business-succession.html A lot of small and medium-sized businesses are or will soon be faced with the issue of business succession. However, searching for a suitable successor can prove challenging in many cases.

According to a study conducted by the Kreditanstalt für Wiederaufbau (KfW), the German reconstruction loan corporation, over 500,000 small and medium-sized businesses are set to make plans for business succession in the coming years, with approximately 100,000 businesses expected to have a successor at the helm by the end of 2019. The problem, however, is that, according to the study, a successor has yet to be found in many instances.

We at the commercial law firm GRP Rainer Rechtsanwälte can report that a lot of businesses have a hard time appraising a suitable successor. A number of factors can compound the difficulty in making arrangements for business succession.

Particularly in the case of family businesses, there is frequently an expectation that the baton will be passed to the next generation. The first issue that needs to be addressed here is whether the children or other relatives are interested in carrying on the business in the first place, and whether they are suitably qualified to run the business. If a successor emerges from within the family, it is particularly important to consider the transition’s implications for tax and succession.

If a successor is not found from within the family, the next option is often to search for a buyer. However, this can prove to be challenging, as there are more company bosses looking to step down in the near future than there are potential buyers. This makes it all the more important to begin making arrangements for business succession at an early stage. Selling a business can be particularly time consuming and should therefore be planned well in advance, especially since the potential buyer will often have to grapple with the issue of financing, whereas the seller is aiming to get as good a price as possible. For this reason, the initial priority should be to evaluate the business in order to obtain an appropriate selling price. In addition to factors such as the order situation, balance sheets and existing employment contracts, claims arising from succession law should also be considered when a business is being sold. If the business has multiple shareholders, it may be beneficial to sell one’s shares to fellow shareholders.

Business succession is a complex topic that needs to be addressed in a timely manner. Experienced lawyers can ensure a smooth transition of the business.

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

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UnternehmensnachfolgePressemitteilungen