Category Archives: Politics Law Society

Politics Law Society

GRP Rainer Rechtsanwälte – Experience in establishing companies

GRP Rainer Rechtsanwälte – Experience in establishing companies

GRP Rainer Rechtsanwälte - Experience in establishing companies

Choosing the right corporate form when establishing a company can contribute a great deal to the economic success of the business.

We at the commercial law firm GRP Rainer Rechtsanwälte advise numerous businesses on company formation and takeovers as well as in the event of a change of partners or shareholders. In our experience, the partners or shareholders frequently neglect one critical point amidst all the euphoria: choosing the right corporate form for the business. The importance of the company“s form is often underestimated, yet our experience tells us that this can represent a key foundation of the business“ success.

The various types of company entail different rights and obligations. Aspects relating to the required registered capital, and the taxation and liability of the partners or shareholders can play a crucial role here. That is why it is critical to carefully weigh up the advantages and disadvantages of the respective corporate forms and then choose the type of company best suited to the business“ aims and opportunities.

A comprehensive understanding of both national and international company law is essential to being able to reach a decision. Thanks to the freedom of establishment for businesses it is also possible to opt for foreign corporate forms. This is equally an important factor if the intention is to set up companies or branches abroad or, conversely, foreign investor wish to operate in Germany.

Among the most popular corporate forms is the so-called „Gesellschaft mit beschränkter Haftung“, or GmbH for short, a type of German limited liability company. Experience has shown that this is because of the extensive creative freedom that a GmbH offers on the one hand and the limited risk of liability for shareholders on the other. Their liability risk is limited to their investment, with the registered capital having to amount to at least 25,000 euros.

Notwithstanding this, it is often overlooked when it comes to the issue of liability that shareholders may be liable to pay compensation that goes beyond the value of their investment if they deliberately cause improper damage to the company. Even the managing director of a GmbH can be held liable if he breaches his obligations.

All in all, a range of economic, legal and tax issues need to be considered when establishing a company, which is why it makes sense to obtain comprehensive legal advice from a single source. Lawyers who are versed in the field of company law can address these matters and find the optimal solution together with the client.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Köln: Will written with non-dominant hand valid

OLG Köln: Will written with non-dominant hand valid

OLG Köln: Will written with non-dominant hand valid

It is possible for a will to be valid even if it was written with the hand one does not normally write with. That was the verdict of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] in its ruling of August 3, 2017 (Az.: 2 Wx 149/17).

In addition to preparing a notarized will, a testamentary disposition can also be handwritten. To this end, the will needs to be written from top to bottom as well as signed by the testator. Moreover, the place and date ought not to be omitted in case any legal disputes arise. We at the commercial law firm GRP Rainer Rechtsanwälte note that this kind of handwritten will can easily be attributed to the testator in most cases. The situation is more difficult, however, if the testator writes the will with the „wrong“ hand, i.e. the hand he does not normally write with.

This is exactly what one testator did. Due to his illness his right arm began to show signs of paralysis, with the result that he drafted a will with his left hand in which he appointed his neighbours as his heirs. Notwithstanding this, a second will came to light. According to this, the testator“s siblings were to become his heirs. The OLG Köln had to decide which will was valid.

After extensively gathering evidence through the testimony of witnesses and obtaining an expert graphological assessment, the OLG Köln ruled that the will written with the testator“s left hand was valid and the neighbours received the certificate of inheritance. While the expert witness was not able to confirm with certainty that this will was from the testator because there were no comparable documents written with the latter“s left hand, one witness was able to give credible assurances that he was present when the testator drew up the will. The siblings were unsuccessful in establishing their line of reasoning that a will written with one“s non-dominant hand would have been substantially more irregular in appearance; it was held that it is possible to produce a regular typeface even with one“s untrained hand.

The Court took the view that the other will was not from the testator. It was sent anonymously to the probate court and prepared at a later stage according to its featured date. It was clear from the typeface alone that it was not from the testator, as at this point in time he was only able to write with his left hand.

When it comes to issues pertaining to an estate, lawyers who are versed in the field of succession law can offer advice.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Köln on incorporating the execution of a will into the certificate of inheritance

OLG Köln on incorporating the execution of a will into the certificate of inheritance

OLG Köln on incorporating the execution of a will into the certificate of inheritance

Heirs might be able to do as they wish with an estate even if an execution of a will has been ordered if its function is supervisory in nature. That was the verdict of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne].

We at the commercial law firm GRP Rainer Rechtsanwälte note that if a testator orders execution of a will, this may limit the heirs“ control in relation to the estate. The execution of the will is then recorded in the certificate of inheritance. However, this step does not need to take place if the testator intended that the execution of the will be merely supervisory in nature and the executor“s brief is not supposed to involve administering the estate. That was the verdict of the Oberlandesgericht Köln in its ruling April 3, 2017 (Az.: 2 Wx 72/17).

In the instant case, the 85-year-old testator had five children. He appointed them in his will as preliminary heirs and his grandchildren as revisionary heirs. He also ordered execution of the will. In doing so, he mandated that the executor“s role was to supervise his testamentary disposition and not the ongoing management of the estate. Moreover, he ordered an additional executorship for his disabled daughter; her share in the inheritance was to be administered by way of a permanent executorship.

The point of contention was whether the supervisory execution of the will needed to be incorporated into the certificate of inheritance. The OLG Köln took the view that there was no cause for doing so. It interpreted the testator“s will to mean that he, with the exception of the disabled daughter, did not wish to limit the four other children“s right of disposal in relation to their share in the inheritance. The executor was only to supervise the implementation of his testamentary dispositions.

Accordingly, because these four children were able to do as they pleased with their portion of the estate, the OLG Köln held that a memorandum stating that the execution of the will had been ordered need not be included in the certificate of inheritance. The Court went on to say that this would only be necessary if the execution of the will was supposed to limit the heirs“ control.

The testator should always take care to ensure that their wishes have been stated as clearly as possible so that their testamentary dispositions are actually implemented in accordance with their wishes. Lawyers who are versed in the field of succession can advise on all matters pertaining to estates, wills and contracts of inheritance.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Köln: Only serious misconduct justifies withdrawal from contract of inheritance

OLG Köln: Only serious misconduct justifies withdrawal from contract of inheritance

OLG Köln: Only serious misconduct justifies withdrawal from contract of inheritance

Apart from a will, it is also possible to prepare a contract of inheritance as a way of organizing one“s estate. It should be noted, however, that a contract of inheritance has a significantly stronger binding effect.

In the absence of a will or contract of inheritance, the rules of intestate succession apply automatically following the death of the testator. If these run contrary to the testator“s wishes, a testamentary disposition ought to be drafted. In doing so, one needs to carefully weigh up whether a will or contract of inheritance is the most appropriate form. A will provides the testator with greater freedom when it comes to drawing up the agreement, whereas a contract of inheritance binds both parties to the contract. Having said that, a contract of inheritance cannot be subsequently altered or rescinded. If no appropriate provisions are set out in the contract of inheritance, we at the commercial law firm GRP Rainer Rechtsanwälte note that withdrawal is only possible if misconduct on the part of the other contractual party that would justify divestment of the compulsory portion can be proven.

In its judgment of July 3, 2017, the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] ruled that a testator had not effectively withdrawn from the contract of inheritance with his wife (Az.: 2 Wx 147/17). The married couple had concluded a notarized contract of inheritance 53 years prior to the death of the husband in which they had designated each other as sole heirs. Several months before his death, the husband announced his withdrawal from the contract of inheritance and appointed his children as heirs. A dispute emerged between the wife and the children concerning who had become the heir(s). The OLG Köln held that the wife had become the sole heir.

The parties had not agreed to a reservation of the right to withdraw in the contract of inheritance, which meant that withdrawal was only possible if the relevant contractual partner had been guilty of serious misconduct. The Court clarified that this misconduct needed to be sufficiently serious that it would have justified divestment of the compulsory portion. This would only be the case if the legal heir was guilty of committing a crime or wilfully committing a serious offence against the testator. In the case in question, while the wife had withdrawn around 19,000 euros from the testator“s account and set up a monthly standing order to her benefit in the amount of 2,000 euros, the OLG concluded that this alone did not amount to an offence involving property.

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

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies are not allowed to offer their customers promotional gifts when the latter are purchasing prescription medicinal products. That was the verdict of the Oberverwaltungsgericht (OVG) NRW, North Rhine-Westphalia“s Higher Administrative Court, in two rulings from September 8, 2017.

Consumers in Germany are accustomed to prescription pharmaceuticals being the same price in every pharmacy. We at the commercial law firm GRP Rainer Rechtsanwälte note that German pharmacies are not allowed to deviate from this pharmaceutical pricing regulation and therefore cannot grant price reductions or discounts in the case of prescription or other fixed-price medicinal products or promote these products on this basis. Moreover, the uniform selling price cannot be circumvented by having the customers receive vouchers or other material assets when purchasing medications. That was he verdict of the Oberverwaltungsgericht NRW in two judgments from September 8, 2017 (Az.: 13 A 2979/15 and 13 A 3027/15).

Both rulings stem from the following set of facts: Two pharmacists had promoted vouchers that could be redeemed by submitting a prescription. After presenting the voucher, the customers would receive a pair of cosy socks or wrapping paper. The competent pharmaceutical society viewed this as a violation of the pricing controls for prescription medicinal products and prohibited these types of vouchers from being issued. The legal action brought by the pharmacists against this decision was unsuccessful.

The OVG held that the promised non-cash benefits such as the cosy socks and wrapping paper gave consumers the impression that the medication was cheaper in these pharmacies than in others. This was a violation of the pharmaceutical pricing regulation, as customers were receiving everyday goods for redeeming the voucher. The Court went on to say that the fact that these were material assets of little value was insignificant, because no de minimis limit applies to the price controls.

The OVG also noted that a ruling of the Court of Justice of the European Union finding that these price-fixing regulations do not apply to foreign mail-order pharmacies does not affect the price controls. The Court clarified that this competitive advantage that foreign mail-order pharmacies have has yet to seriously impact domestic pharmacies negatively.

There is often a fine line that needs to be tread when it comes to advertising for pharmacies as well as other health organisations. Violations of competition law can be met with severe penalties. Lawyers who are experienced in the field of industrial property can offer advice and take appropriate legal measures in the event of violations.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Commercial agent“s claim for compensation following voluntary termination

Commercial agent“s claim for compensation following voluntary termination

Commercial agent"s claim for compensation following voluntary termination

A commercial agent may even be entitled to compensation if he or she voluntarily issues notice of termination. However, the company“s conduct needs to give rise to legitimate grounds for termination for this to happen.

When a commercial agency agreement is brought to an end, the commercial agent often has a right to compensation. This is because the company in a lot of cases continues to profit from the client contacts that the commercial agent secured. There may be a right to compensation if the commercial agent terminates the agreement himself, but only if certain conditions are met; the company“s conduct must give rise to legitimates grounds for terminating the agreement. We at the commercial law firm GRP Rainer Rechtsanwälte note that a ruling of the Oberlandesgericht (OLG) München [Higher Regional Court of Munich] from February 2, 2017 has clarified that this is not the case if the company has merely omitted of its own accord to offer the commercial agent a reduction in rent to enable the commercial agent to obtain sufficient profits (Az.: 23 U 2749/16).

In the instant case, a filling station tenant had himself terminated the commercial agency agreement due to poor profits and demanded compensation in his capacity as a commercial agent. However, the OLG München ruled that the tenant was not entitled to this claim, stating that a commercial agent cannot unilaterally shift his or her entrepreneurial risk onto the company.

The OLG went on to say that the requirements pertaining to „legitimate grounds“ are less stringent than those in relation to good cause for termination, meaning that for these purposes no-fault or even lawful conduct on the part of the company may be enough. The Court held that it is necessary as well as sufficient for the company“s conduct to create a bona fide unacceptable situation for the commercial agent.

This was not the case here, it being irrelevant that the company had opened another filling station approx. 1.4 kilometres away. The Court ruled that this had not demonstrably led to profit losses, especially since both parties had agreed to a reduction in the rent. The company could also not be accused of having rejected an application brought by the tenant to take over another filling station, as the latter in his capacity as a commercial agent was subject to a legal prohibition on competition for the duration of the contractual period.

Before issuing notice of termination, commercial agents ought to carefully assess whether they are risking their right to compensation by doing so. Lawyers who are experienced in the field of commercial law can offer advice.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

As a matter of principle, an heir has the option of renouncing his or her inheritance. Under certain circumstances, the heir can also challenge and revoke this renunciation.

Heirs are not obligated to accept an inheritance and can instead reject it. The inheritance needs to be formally renounced within a period of sex weeks after the accrual of the inheritance comes to light. Once the inheritance has been renounced, it is then very difficult to undo this at a later stage. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that it is possible under certain circumstances, as demonstrated by a judgment of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] from May 4, 2017 (Az.: 20 W 197/16).

According to this, renouncing an inheritance is possible if the renouncing heir mistakenly assumes that by renouncing his or her share in the inheritance this share will then only go to his fellow appointed co-heir pursuant to the rules of intestate succession, as this means that the former is labouring under a misapprehension regarding a direct legal consequence of the renunciation, with this amounting to substantial error justifying a challenge.

This is exactly what happened in the inheritance case that came before the OLG Frankfurt. The testator had left behind a wife and a son. The son renounced the inheritance in the belief that his share would then automatically go to his mother and she would thus become the sole heir. However, the testator also had a brother who would have become a co-heir following the son“s renunciation of his share in the inheritance. The latter therefore contested the renunciation. The OLG Frankfurt ruled in his favour, stating that the son had not realized that in renouncing the inheritance a major consequence of doing so involved his share in the inheritance going to the person who would have become heir under the rules of intestate succession if he, the son, had not been alive at the time of the testator“s death, i.e. the testator“s brother in this case. The OLG held that this constituted a substantial error of law that justified the challenge.

A legal heir ought to thoroughly inform himself about the legal consequences of renouncing an inheritance before doing so, because contesting a renunciation is often extremely difficult. Those who do not wish to rely on the rules of intestate succession can prepare a will or contract of inheritance as a way of organizing the estate in accordance with their wishes. Lawyers who are experienced in the field of succession law can offer advice.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Inheritance – Waiving compulsory portion among siblings may prove more expensive

Inheritance – Waiving compulsory portion among siblings may prove more expensive

Inheritance - Waiving compulsory portion among siblings may prove more expensive

Legal heirs who waive their compulsory portion and receive a form of compensation for doing so need to keep an eye on the tax burden. Following a judgment of the Bundesfinanzhof (BFH), Germany“s Federal Fiscal Court, this may turn out to be higher than was previously the case.

Even if legal heirs are excluded from inheriting by way of a will, they are still entitled to their share in the compulsory portion. Should those entitled to the compulsory portion waive this to the benefit of their siblings and receive compensation in return, this may prove to be considerably costlier than was hitherto the case following a ruling of the Bundesfinanzhof from May 10, 2017. According to this, a distinction needs to be made depending on whether the waiver was issued during the testator“s lifetime or after his or her death (Az.: II R 25/15). We at the commercial law firm GRP Rainer Rechtsanwälte note that the tax implications can be significant.

In the instant case, a brother had waived his entitlement to the compulsory portion during the lifetime of the testatrix in favour of his three siblings in case he was excluded from the inheritance by his mother. In return, he received a payment from each of his siblings in the amount of 150,000 euros. Several years prior to this, he had already received gifts from his mother amounting to around one million euros.

The tax office issued separate gift tax assessment notices for his siblings“ donations and in the process added the value of the of the mother“s gifts to the payment of 150,000 euros from each sibling, and then deducted the applicable tax allowance at the time of 205,000 euros. In doing so, it applied the first tax bracket to the case and thus a tax rate of 19 per cent. In the end, this resulted in a tax levy of 28,405 euros. The relevant assessment notice was adjusted following a legal action. This reduced the gift tax burden to 10,810 euros; the gifts from the mother ought not to have been taken into account for the purposes of the calculation.

Nonetheless, the fiscal court also applied the first tax class to the case. Wrongly so, according to the BFH. It held that because the donation was among siblings and not between parents and children, the considerably less favourable second tax bracket ought to have been applied to the case. The tax allowance here was then only 10,300 euros (20,000 euros today). This meant the gift tax rose again to approx.. 23,600 euros. The BFH has thus substantially amended its case law. Lawyers who are experienced in the field of succession law can offer advice.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH on risk of confusion in trademark law

BGH on risk of confusion in trademark law

BGH on risk of confusion in trademark law

Anyone registering a trademark needs to make sure that no rights pertaining to an existing trademark will be infringed and that there is no risk of confusion between the trademarks.

Trademarks are of great important to businesses. They improve brand recognition from the perspective of consumers and contribute to customer loyalty. Violating existing trademark rights can give rise to tough sanctions. In its ruling of March 2, 2017, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, held that when it comes to assessing whether a word mark or its components describe the goods or services covered, it does not come down to the importance or meaning the trademark owner attaches to the word mark. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Court clarified that it is in fact the perspective of the audience being addressed which is decisive (Az.: I ZR 30/16).

It went on to say that it is possible by way of exception to negate the risk of confusion between two marks despite there being phonetically and visually similar if the marks“ conceptual content is clearly divergent and this is readily discernible. On the other hand, the BGH ruled that if the meaning is only evident following an analytical examination then this is insufficient for these purposes.

The Bundesgerichtshof had to rule on a trademark dispute between two pharmacies. The plaintiff is the owner of a word mark, part of whose name includes the word „Medicon“, as well as a corresponding word/image mark. The defendant made use of a similar term, which merely omitted the letter „n“. The plaintiff viewed this as a violation of its licensed trademark.

While the legal action was unsuccessful before the courts of lower instance, with the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm] proceeding on the assumption that there was no risk of confusion between the trademarks, the BGH took a different view.

The OLG had started from the premise that the trademark under dispute had very little and far below average distinctive character, consisting of a series of descriptive and undistinctive words strung together, whose content was said to be readily apparent to its audience without the need to carry out any analysis. Notwithstanding this, the BGH ruled that when determining the distinctiveness of a trademark one needs to focus on the overall impression of the mark, and that the audience generally tends not to dissect and analyse a trademark. It therefore concluded that a similarity between marks cannot be negated.

Lawyers who are experienced in the field of intellectual property law can advise companies on all issues relating to trademark law.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH: Online advertising must clearly reference energy efficiency class

BGH: Online advertising must clearly reference energy efficiency class

BGH: Online advertising must clearly reference energy efficiency class

When it comes to online advertising for electronic appliances, the energy efficiency class must be clearly visible to consumers. That was the verdict of the Bundesgerichtshof (BGH) in its ruling of April 6, 2017 (Az.: I ZR 159/16).

According to the latest case law from the Bundesgerichtshof, it is not necessary for the energy efficiency class of an electronic appliance advertised online to be on the same webpage as the price-related advertising, it being possible for the former to be featured on a separate webpage accessible via a link found near the advertisement. However, this is not enough if the link is formulated in a general manner. The BGH clarified that a link such as „Mehr zum Artikel“ (More on this item) is not sufficient. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Court went on to say that the reference needs to be clearly identifiable as an indication of the appliance“s energy efficiency class.

In the case in question, a DIY chain had promoted an air conditioning unit on the internet. Below the price quotation was the link „Mehr zum Artikel“. Clicking on this opened up another page with various specifications pertaining to the device, including its energy efficiency class. A consumer protection organization considered this to be insufficient and a violation of the EU regulation pursuant to which the energy efficiency class of an electronic appliance has to be immediately recognizable. It brought a legal action all the way up to the BGH.

Unlike the courts of lower instance, the BGH followed the consumer advocates“ line of reasoning, ruling that it was not the fact that the information concerning the device“s energy efficiency class had to be accessed via a link which constituted a violation of the EU regulation but that the link had been too general in nature and did not clearly indicate to consumers that the information could be found by clicking on the link. The Court held that the energy efficiency class is a key element for consumers in appraising an appliance and thus also in deciding whether or not to purchase the device. The BGH concluded that this practice significantly undermines the interests of the consumer.

Advertising that violates competition law can give rise to formal warnings, damages claims and injunction suits. Lawyers who are versed in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.

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

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en