Preu Bohlig & Partner strengthens its arbitration practice with London School of Economics

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1 Newsletter February 2011 Newsletter Juni 2010 NEWS NEWS Preu Bohlig & Partner strengthens its arbitration practice with London School of Economics Preu lecturer Bohlig Dr Jan & Partner Kleinheisterkamp Berlin hat sich mit Berliner Sozietät Spitzweg 2 zusammengeschlossen 2 Intellectual Property Gewerblicher Rechtsschutz The EU patent is making progress 3 BGH ändert seine Rechtsprechung zur Behandlung gesetzlicher Unterlassungsansprüche News on the in seizure der Insolvenz of counterfeit products in transit 4 3 Alleged breach of patent attorney contract 6 Wettbewerbsrechtliche Vorhaben auf EU-Ebene 4 Competition Law Series: News on price information 7 Europäischer Gerichtshof erachtet deutsche Regelung zum Gewinnspielkopplungsverbot Dr Peter Kather receives als zu weitgehend Porsche Award in the Patent Litigation category 5 9 Entscheidung Orientation in the springender cloud Pudel des OLG Hamburg 10 6 WARNUNG: Verein pro Verbraucherschutz Rechnungsbetrüger ev [consumer bei Markenveröffentlichungen protection association] revocation of registration 12 7 JUVE Verlag has judged Preu Bohlig & Partner to be a top employer in trademark law JUVE Verlag bewertet Preu Bohlig & Partner als Top-Arbeitgeber im Patentrecht 7 and competition law 12 Wirtschaftsrecht Commercial Law Auswirkungen des BilMoG 8 Authority imposes a EUR 140,000 fine for the unauthorised storage of health data 13 Neue Vorschriften zur Gewinnabführung im Bilanzrecht 8 Incoterms

2 Preu Bohlig & Partner strengthens its arbitration practice with London School of Economics lecturer Dr Jan Kleinheisterkamp Attorney-at-Law Dr Jan Kleinheisterkamp has just joined Preu Bohlig & Partner s Düsseldorf team in the capacity of Counsel Since 2008 Jan Kleinheisterkamp has taught international law at the London School of Economics (LSE), specialising in arbitration, and has acted as an arbitrator in various ICC and LCIA arbitration proceedings He is also a visiting professor in international commercial law at Panthéon-Assas (Paris II) University and advises the European Parliament on aspects of international investment protection law Prior to that he was an assistant professor at the HEC School of Management in Paris and an academic adviser at the Max Planck Institute for International Private Law in Hamburg The arrival of Jan Kleinheisterkamp enables Preu Bohlig & Partner to strengthen the arbitration side of the practice and continue its growing international orientation Dr Kleinheisterkamp will support the practice in arbitration proceedings Dr Christof Augenstein, Partner: We are delighted to be gaining such an experienced specialist in Dr Kleinheisterkamp, who brings with him not only outstanding in-depth knowledge but also excellent international connections in the field of arbitration Preu Bohlig & Partner lawyers have for many years acted in prestigious national and international arbitration proceedings, both as the representative of a party and as arbitrators Dr Jan Kleinheisterkamp Preu Bohlig & Partner, Dusseldorf Office Newsletter February

3 The EU patent is making progress After we reported in our last client newsletter that many had given up the EU patent for dead, the European Commission, and with it the European Parliament, has moved forward in leaps and bounds The EU patent is now set to be adopted by way of the enhanced cooperation procedure With the help of this instrument, individual member states will be able to establish a legal framework without the need for all member states to take part As things stand at present, the vast majority of the 27 member states, 23, will be taking part The Parliament and the Commission will report to the European Patent Court on the basis of the ECJ report During the Belgian presidency of the second half of 2010, no compromise was found in the ongoing dispute concerning the language of the EU patent, despite every effort As had been expected, the Commission s proposal that EU patents should be issued only in English, French and German, as is the case with the European Patent Office, met with a negative reaction from many other EU states, especially Spain and Italy As a result of this blockade, it emerged by the end of 2010 that a few states would choose the route of enhanced cooperation with regard to the EU patent language issue This procedure means that individual states within the European Union can implement a specific legal framework alone The Council of Ministers must decide by a qualified majority and the agreement of the European Parliament must be obtained It is only the second time in the history of the European Union that the process of enhanced cooperation has been used 23 of the 27 member states have now joined the en- hanced cooperation procedure; only Spain, Italy, Cyprus and the Czech Republic are not taking part However these states still retain the option of opting in at a later stage On 28 January 2011 the process cleared its first hurdle, when the European Parliament Committee on Legal Affairs approved the enhanced cooperation procedure for the EU patent The consent of the European Parliament at its next sitting in mid-february is considered to be assured If the EU Council of Ministers agrees by a qualified majority, the Commission will draw up detailed proposals by the end of 2011 for the implementation of the joint language regime The European Patent Office is to be responsible for granting Even if patents were filed in all official languages of the European Union, the language of the grant procedure is German, English or French, corresponding to the present arrangements at the European Patent Office If the application is not in one of these languages it should be translated into one of them It remains unclear who will bear the costs of this translation, as there is a reluctance to inflict excessive hurdles on applicants within the European Union who speak other languages In the case of a legal dispute, on the other hand, the disputed patent must be translated; the potential infringer may choose whether this is into the language of his country or the language of the country in which the alleged patent infringement took place A competent court may also require translation into its procedural language The process of enhanced cooperation is currently only being adopted for the patent regulation and associated language regulation It is not yet clear to what extent enhanced cooperation will also be chosen for the proceedings before the new European Patent Court The parties involved are still awaiting the ECJ report, expected on 8 March 2011 The ECJ normally includes representations from the advocate Newsletter February

4 general It is to be expected that he will not deem the European Patent Court in its present form to be admissible, but that the difficulties will be surmountable We reported on this in detail in our last newsletter We therefore assume that, following the decision of the ECJ, work on the European Patent system will continue at an accelerated rate It appears highly likely that a text ready for passing will be presented in late 2011 or early 2012 Dr Christof Augenstein Attorney at law Dusseldorf News on the seizure of counterfeit products in transit It is an ongoing saga for owners of intellectual property rights in the European Union Counterfeit products are shipped from a third state in which the proprietor does not have any trade mark protection through a country in which the sign is protected, with the aim of forwarding them to a third country According to the case law of the European Court of Justice, in such cases, the owner of a trademark cannot prohibit the transport of goods that bear the sign across the territory where that mark is protected Transit alone does not represent putting the goods on the market and does not affect the specific subject of the trade mark (see judgement of , C-281/05 - Montex Holdings/ Diesel) Also, according to the decision of the German Federal Supreme Court, the uninterrupted transport of goods that are identified abroad by a domestic protected trade mark through the territory of the Federal Republic of Germany does not constitute an infringement of the domestic trade mark as such (judgement of , Case I ZR 246/02 Diesel II) Now, on , the Advocate General for the European Court of Justice presented his opinions on two further associated proceedings (C-446/09 and C-495/09) These concern the preliminary rulings of the Antwerp Court of First Instance and the Court of Appeal (England & Wales) The legal framework for the questions referred is Regulation (EC) No 3295/94 and the follow-up Regulation No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights Both cases concern presumed counterfeit and/or unlawfully manufactured goods that fall into the category of external transit under customs law In the first case, Koninklijke Philips Electronics N V, the Antwerp customs investigators stopped a shipment of suspicious razors from Shanghai It was suspected that they infringed both international design registrations for Philips razors as well as copyrights in the Newsletter February

5 external appearance of these razors An application for temporary importation of the goods was filed, but the country of destination was not given Philips brought an action seeking a ruling that its intellectual property rights had been infringed According to Philips, the court in Antwerp should have started from the fiction that the confiscated razors were manufactured in Belgium and that Belgium law should be applied to determine the infringement It stated that, within the framework of the legal fiction that every external transit represents, a different legal fiction should be implemented, the so-called manufacturing fiction, according to which non-community goods in transit are dealt with as if they had been manufactured in the Member State in which they are found They would then be subject to the valid provisions of this state for the protection of intellectual property and thus be exempt from proof of sale of the goods within the European Union Basically, the Antwerp Court of First Instance submitted the question to the European Court of Justice of whether a court dealing with the matter should take into account in its ruling that the goods were in a state of temporary storage ergo in transit or should start from the fiction that the goods were manufactured in this Member State and thus, under the law of the Member State, decide whether the goods infringed the relevant intellectual property law (see Art 6 (2) (b) in the Rules of Procedure 3295/94) In the Nokia Corporation case, the customs authorities of the United Kingdom stopped a delivery of goods from Hong Kong to Colombia at Heathrow Airport and examined it It is indisputable that the approximately 400 mobile phones, batteries, etc that all bore the brand name Nokia were counterfeit However, the British customs authorities were of the opinion that it was difficult for them to clearly establish to what extent goods could be counterfeit if there was no indication of their possible diversion to the EU market, and refused to confiscate the goods from the owners Nokia filed an appeal The High Court of Justice ruled that the Regulation of 2003 did not justify any powers or duties on the part of the customs authorities in this respect to hold back or confiscate counterfeit goods in transit if there was no indication that the goods were to be diverted to the markets of the Member States, since this was not a case of counterfeit goods within the meaning of Art 2 (1) (a) (i) of the Regulation of 2003 The Court of Appeal submitted the question to the European Court of Justice of whether non-community goods bearing a Community trade mark that were subjected to a customs check in a Member State and that were being transported from one non-member state to another non-member state represented counterfeit goods in the foregoing sense, if there was nothing to indicate that these goods were to be put on the market within the Community The Advocate General s answer to the preliminary rulings is as follows: In the Philips case he proposed the following ruling: The body of the Member State (in this case the court) cannot ignore the fact that the goods were in a state of temporary storage or transit; the relevant provision can also not be interpreted to the effect that a court can apply a fiction that these goods were manufactured in a Member State in order then to determine, under the law of this Member State, whether they infringe the relevant intellectual property law The proposal of the Advocate General in the Nokia case is as follows: Non-Community goods bearing a Community trade mark that are subjected to a customs inspection in a Member State and are in transit between one non-member state and another non-member state can be confiscated by the customs authority if there are sufficient grounds for suspicion that the goods are counterfeit and, in particular, if they are intended to be put on the market within the European Union, either in conformity with a customs procedure or unlawfully It is assumed that the European Court of Justice will follow the long-awaited opinions Astrid Gérard, LLM Attorney at law Munich Newsletter February

6 Alleged breach of patent attorney contract In a decision, not yet final and conclusive, of , file ref: 7 O 3935/10, the Munich I Landgericht (Regional Court) dismissed a claim against a patent attorneys practice, represented by Preu Bohlig, for alleged breach of patent attorney contract The former client of the patent attorneys and present Plaintiff manufactures items including self-inking round stamps with and without dates At a trade fair in January 2004 the Plaintiff exhibited a range of round stamps bearing the Plaintiff s own trade mark On , the Plaintiff s exhibition stand was visited by a competitor with legal representation, who also produces round stamps bearing the company name of the competitor The competitor s patent attorneys claimed that the Plaintiff s round stamp was an infringement of a registered design of the competitor and furthermore was in breach of Section 4 (9) of the Law against Unfair Competition ( additional protection against competition ) The competitor s patent attorneys demanded that the Plaintiff withdraw the round stamp in question from its exhibition stand and sign a cease and desist declaration with a penalty clause by (12:00 hrs) Should the Plaintiff not do so, the competitor s patent attorneys made it clear that they would take steps to initiate court proceedings, in particular to obtain an interim injunction which they would serve at the trade fair The Plaintiff immediately instructed its patent attorneys and stated that in no way would it have sanctions imposed on it at the trade fair The patent attorneys first gained an extension of the compliance period to and then, together with the Plaintiff, entered into discussions with the competitor and its patent attorneys After examining the facts and the legal situation, the patent attorneys came to the conclusion that an infringement of the competitor s registered design, and in any case, at least a breach of Section 4 (9) of the Law against Unfair Competition, would be given serious consideration They therefore advised the Plaintiff to sign the cease and desist declaration with penalty clause, with minor alterations, as requested, in order to prevent the threat of interim injunction proceedings Therefore, on the advice of its patent attorneys, the Plaintiff signed the cease and desist and obligation declaration with penalty clause, with minor alterations, and this was accepted by the competitor In 2010 the former client initiated a claim before the Munich I Landgericht (Regional Court) (patent litigation chamber) against the patent attorneys, on the grounds that the advice given in early February 2004 at the trade fair to sign the cease and desist declaration with penalty clause had been wrong In giving this advice, the patent attorneys had been in breach of their contract If the patent attorneys had not given the incorrect advice to sign the cease and desist declaration with penalty clause, the Plaintiff would have been able to continue marketing the round stamp, making a profit from 2004 onwards of around EUR 12 million, the amount claimed as compensation The patent attorney s defence was that their recommendation was correct at the time it was made There was a risk that an interim injunction would have been issued against the former client and current Plaintiff on the grounds of infringement of the competitor s registered design and breach of Section 4 (9) of the Law against Unfair Competition In a judgement of , the Munich I Landgericht (Regional Court) dismissed the claim against the patent attorneys and stated as follows regarding the obligations of a patent attorney to give advice: If the client did not make it clear that he needed advice only along specific lines, the patent attorney was obliged to give the client information that was general, comprehensive and as exhaustive as possible Within the scope of the terms of reference he should advise the client to take the steps needed to achieve the desired objectives, and to prevent anything that would be detrimental to the client, to the extent that this is foreseeable and preventable He should propose to Newsletter February

7 the client the safest and most riskfree course of action and explain any possible risks, thereby putting the client in a position to make the best possible decision in the circumstances On the basis of these criteria, the patent attorneys had acted in accordance with their obligations in 2004 If the round stamps in question were compared, at least a breach by the former client and current Plaintiff of Section 4 (9) of the Law against Unfair Competition would have been given serious consideration An interim injunction against the former client was in fact threatened In such a situation the safest and most risk-free course of action was to advise the client to make the cease and desist declaration with penalty clause demanded In the opinion of the Munich I Landgericht (Regional Court) this did not constitute a breach of the patent attorney contract The court therefore did not need to consider the matter of limitation According to Section 195 of the German Civil Code, the limitation period is three years, beginning at the end of the year in which the claim arose and the injured party became aware of it In this case the former client had made the claim in 2010 Any claims for the period up to would therefore have been statute-barred in any case Dr Michael Buddeberg, Jürgen Schneider Attorneys at law Munich Competition Law Series: News on price information Apart from quality and contractual terms and conditions, the price of a product or service is the key competitive element in virtually all sectors and levels of the economy In many areas it is even the reason for action per se It is therefore no surprise that disputes over the details of the price information law should be part of the daily business of German courts Principle of price reflects cost The guidelines for determining price information are actually clearly defined: Price information must comply with the principle of price reflects cost ( 1 (6) Price Indication Regulation [PAngV]) Price information must not be deceptive as to how the price is calculated and must be sufficiently clear to offer the consumer optimum price comparison options The above-mentioned principle is also supported by the ban on misleading descriptions Pursuant to 5 (1) sentence 2 no 2 of the Law against Unfair Competition (UWG), a business transaction is misleading if it contains information on the reason for purchase or the existence of a particular price advantage, the price or the way in which it is calculated, that is intended to deceive The principle of price reflects cost complies with the EU information model that aims to ensure that the provision of sufficient information for the consumer is a condition for competition to operate Pursuant to 1 (6) sentence 2 of the Price Indication Regulation, the offer or the advertisement must be unambiguous, easily identifiable and clearly legible or otherwise easy to understand But, as always, the devil is in the detail: Must the VAT also be shown when goods are sold exclusively to retailers? What do you do if the ope- Newsletter February

8 rator of a search engine via which the retailer offers his goods does not immediately enter any price changes? What is the minimum font size for basic price information to be deemed clearly legible? And in online transactions, how many clicks should separate the basic price information from the final price information? The new decision of the German Federal Supreme Court The Federal Supreme Court had to deal with the question of the duty to display VAT in April last year A used car dealer offered used cars for sale via the website wwwmobilede without showing the VAT Pursuant to 1 (2) no 1, 9 (1) no 1 of the Price Indication Regulation this is only permitted if the relevant offer is not directed at the end user However, this could not be clearly established from the used car dealer s offer: The text of the advertisement only contained references such as Export price-fca or Dealer price-fca, which, in the opinion of the Federal Supreme Court, did not represent a clear restriction of the offer to commercial recipients The misleading offer was therefore not permissible, regardless of the fact that there had been no sales to end users, because it cast an unfavourable light on the offers of its competitors (see BHG, judgement I ZR 99/08 - price advertising excluding VAT) In the Espresso machine ruling (judgement I ZR 123/08) the Federal Supreme Court clarified that the averagely informed user of a price comparison site on the internet routinely expects the information presented to him there to be as current as possible, unless otherwise stated Anyone who offers goods for sale via a price comparison site on the internet must ensure that any price changes are entered into the price search engine immediately and not just a few hours later Showing the Last update date for the price query does not release the advertiser from this duty, because this information indicates the time the offer was placed and/or the last time it was updated It is not clear from this, however, whether the price has changed again in the meantime In the decision regarding Dispatch charges for Froogle II (judgement I ZR 16/08), also from March last year, the Federal Supreme Court also expressly decided that the dealer had the duty to ensure the correctness of the information in a price search engine The dealer could not be exculpated from this by saying that the search engine operator only updated his data once daily; he should, in fact, take such technical considerations into account when creating his offer Moreover, in its decision the Federal Supreme Court clarified its case law regarding information on supply and delivery costs Indeed, in the case of a delivery transaction the consumer is aware that there will probably be postage on top of the price of the goods Therefore, as a rule it would be sufficient if the supply costs and delivery charges pursuant to 2 (2) sentence 1 no 2 of the Price Indication Regulation were shown directly, clearly and in a form that is easy to understand on a separate internet page that had to be called up before starting the order procedure by placing the goods in the virtual shopping basket However, something else would apply to offers in the price comparison lists of a price search engine The meaning and purpose of such price search engines is to give the consumer a quick overview of the different providers of a particular product and what prices are being asked in the end Since experience shows that the supply and delivery costs for the individual dealers vary enormously, a meaningful price comparison is only possible if these different cost items are taken into account The supply and delivery costs should therefore already be listed on the price search engine s website Impact of the amendment to the pre-packaging regulation The amendment to the pre-packaging regulation on the implementation of the pre-packaging directive (GL 2007/45/EC) in the spring of 2009 had a quite considerable impact on the question of what prices were to be given and in what form, since this new regulation meant that the statutory requirements for binding packaging sizes largely disappeared It was argued that it was better to protect the consumer by providing clear information than to prescribe mandatory packaging sizes However, information on the basic price pursuant to 2 (1) sentence 1 of the Price Indication Re- Newsletter February

9 gulation became an important comparison benchmark in this, because it was only by using this information that the consumer could check the value for money of the individual offers amongst the different packaging sizes The formal requirements for this information are correspondingly high Pursuant to 2 (1) sentence 1 of the Price Indication Regulation the basic price must be given immediately next to the final price The consumer must be able to see the basic price and the final price together For this reason, according to the Federal Supreme Court in its ruling on Dr Clauder s Hufpflege ( Dr Clauder s hoof care ) of (Case: I ZR 163/06), the basic and the final price for online offers must be given on the same page Merely the immediate accessibility such as via a link as provided for in 5 (1) of the Telemedia Act (TMA) for information that has to be kept available by service providers is therefore insufficient There are still no specific requirements in relation to the clear legibility of the basic price information within the meaning of 1 (6) sentence 2 of the Price Indication Regulation In principle it must be assumed that it is possible for a consumer with normal eyesight to read the price information easily from an appropriate distance without any aids which must always be judged based on the facts of the individual case The Federal Government-Länder Price information Committee uses as a reference DIN 1450 Lettering, legibility, which determines the font in relation to the distance of the reader and the visual conditions and requires a font size of at least 18 mm in brochures and 500 mm on signs (see Jacobi, WRP 2010, 1217, 1221, minimum standards) The consumer protection ministry in Schleswig-Holstein advocates a coloured background for the basic price information and a specific size in relation to the final price information (wwwschleswig-holsteinde/mlur/ DE/Service/Presse/PI/2010/0410/ MLUR_100409_Fertigpackungsverordnunghtml) What the stance of the Federal Supreme Court will be in this matter remains to be seen Further details on the correct layout of price information can be found in the brochure Price information for consumers of the IHK Cologne (wwwihk-koelnde/upload/preisangaben_5008pdf) Dr Stephanie Thewes Attorney at law Munich Dr Peter Kather receives Porsche Award in the Patent Litigation category Porsche has awarded Dr Peter Kather the prize in the Patent Litigation category for 2009/2010 Once a year the car manufacturer awards prizes in different categories to selected external legal advisers Preu Bohlig & Partner s Düsseldorf office has been advising Porsche on aspects of patent law for many years The article on current developments in competition law will be continued in the next edition of our newsletter Newsletter February

10 Orientation in the cloud According to the IT analysts at Gartner (see wwwgartnercom/it/pagejsp?id= press release of 21 January 2011) cloud computing is still, as it was last year, one of the most significant strategic IT trends ever Others, such as Larry Ellison (see wwwyoutube com Why Larry Ellison hates Cloud Computing ) have strongly criticised cloud computing in the past In any case, cloud computing, in Germany as in the rest of the world, has developed into a market worth billions, with extraordinarily high growth rates (see Bitkom press release of 6 October 2010) But what is concealed behind this term, and what legal problem areas should be especially borne in mind? Given the wide variety of services offered under the term cloud computing, there is no recognised definition, simply a number of pragmatic approaches towards finding a definition According to Forrester Research, cloud computing is an IT infrastructure comprising a pool of abstracting, scalable and manageable systems for customer applications, whose services are charged for after use (wwwforrestercom) Another well-known definition is that by Saugatuck Technology (see wwwsaugatech com) According to them, cloud computing includes a combination of an on-demand infrastructure (computer, memory, networks) and on-demand software (operating systems, applications, middleware, management and development tools), each of which is dynamically adapted to business processes as appropriate Cloud computing applications can also be distinguished according to the type of services These include the already-familiar software as a service (SaaS), the provision of individual software applications via the Internet, platform as a service (PaaS), the provision of a complete IT platform of hardware and software (eg Forcecom from Salesforce) and infrastructure as a service (IaaS), the provision of IT-infrastructure via the Internet, eg archiving and back-up systems With major cloud providers such as Amazon and Google, more or less anything as a service (XaaS) should be possible A further distinction is made between what are known as private clouds, where both providers and users are part of the same company, and public clouds which can be used by any individuals or companies Under German law, cloud computing contracts come in various forms, depending on what they are intended to cover If the contract concerns the provision of memory capacity, the contract may be qualified as a rental agreement Services such as the installation, implementation and adaptation of an item of software as part of a cloud computing contract are governed by the service contract laws, while the provision of computer processing capability in the cloud is categorised as a service in accordance with Section 611 of the German Civil Code In many cases, cloud computing contracts comprise several different service areas, giving rise to a mixed-type contract In these cases it is necessary to analyse what is the main emphasis of the significant subsections and allocate the contract accordingly to the primary contract type When drafting the content of a contract of this type, reference should initially be made to known contract types such as IT outsourcing, IT centre or ASP contracts Important drafting considerations include a full and precise description of the services (access times, type of service, data volume, method of charging for capacities used, etc) The agreement of effective service levels and escalation provisions, agreement on a legal venue in the home country, the choice of law, data protection provisions and clauses covering IT security and compliance (cf Section 91 (2) of the German Companies Act, Section 43 of the German Limited Liability Companies Act and Section 25a of the German Banking Act) are also of crucial importance A range of legal issues also arise surround- Newsletter February

11 ing copyright, based among other things on the difficulty of allocating a specific territory to the cloud These cloud computing services issues include who should acquire user rights for which activities and in which territories (for more on this see eg Nägele/Jacobs, Rechtsfragen des Cloud Computing [Legal issues of cloud computing] ZUM 2010, p 281 (284 f)) Further considerations include whether duplication activities with copyright implications are taking place, not only on the cloud provider s computer systems, but also on the cloud users computers, or even whether cloud computing applications represent a completely new type of use under the copyright laws Cloud computing services are furthermore not to be viewed as telecommunications services as provided by the German Telecommunications Act (TKG), as in this context the relevant provisions relating to the transfer of signals wholly or predominantly via telecom services are lacking A particular barrier to the use of cloud computing services lies in the data protection laws If a cloud computing user transfers personal data to the cloud (eg contact data of customers or employees), in the absence of express consent from the persons in question, the conditions under which such data transfers are permissible as exceptions under the data protection laws needs to be investigated In practice this is done with reference to Section 11 of the German Data Protection Act (BDSG) There are no other exceptional circumstances in this legal context This applies in any case to unencrypted data as provided by Section 28 of the German Data Protection Act It is similarly unlikely that the data protection provisions of the German Telemedia Act (TMG) will be applicable (see Schuster/Reichl, CR 2010, 42) Provided the requirements of Section 11 of the German Data Protection Act are complied with, the providers of cloud computing services are not treated as third parties (see Section 3 (8), sentence 2 of the German Data Protection Act) In order to achieve this privileged status, the cloud computing service provider must, however, comply with specific criteria within the scope of a definite written agreement, such criteria to be derived above all from Sections 11 (2) and 9 of the German Data Protection Act in conjunction with the Appendix to Section 9 of the German Data Protection Act These include specific rights relating to the instruction and monitoring of cloud computing users and specific controls of cloud computing users by the service provider Data protection difficulties may also arise from the requirement of Section 11 of the German Data Protection Act for the specification of the location of personal data It remains to be seen whether these problems will be successfully addressed in qualified inspection reports of cloud providers and others There is also the point that the data protection law privileges of cloud computing providers in accordance with Section 11 of the German Data Protection Act can only be considered within the territory of the EEA The transfer of data to a service provider in other unsafe third-party countries must be covered by further contractual agreements (see the current EU standard contractual clauses under EU Directive 95/46 concerning the transfer of personal data to data processors) Dr Christian Breuer Attorney at Law Munich Newsletter February

12 Verein pro Verbraucherschutz ev [consumer protection association] revocation of registration In a decision of , the Federal Office of Justice recently revoked the registration of the Verein pro Verbraucherschutz consumer protection association in the list of qualified institutions and ordered immediate enforcement We reported in an earlier newsletter that the modus operandi of the association was dubious and that the entry in the list of qualified institutions had been suspended The Federal Office of Justice has now made the next move and revoked the registration This means that the association can no longer initiate court proceedings All proceedings to date that are still outstanding must be pronounced closed The Federal Office of Justice quoted the grounds that the association offered no guarantee that it carried out its duties in the proper manner The association had abused the law or even acted unlawfully The decision described in detail how a variety of test purchases had been made using reprehensible methods, in particular involving criminal or unlawful activities Identity cards had been submitted by under-age test buyers who had been posing as adults They had bought alcoholic drinks and used this as grounds for issuing a warning The use of a false identity card, regardless of the criminal implications of such actions, is viewed as a gross abuse of the law In this way, the sellers were deliberately tricked into an alleged infringement leading to a warning of breach of the competition laws With regard to this, both the test purchase itself and the application for an interim injunction arising from it, were deemed to be dishonest and an abuse of the law The association does not therefore offer a guarantee that it carries out its duties in the proper way, and for this reason the entry in the list of qualified institutions was revoked with immediate effect in accordance with the Injunctive Relief Act (UKlaG) Since then there have been a number of enforcement proceedings against the association All enforcement proceedings have been unsuccessful to date It can therefore safely be predicted that the association will have to cease its activities Prof Dr Christian Donle Attorney at Law Berlin JUVE Verlag has judged Preu Bohlig & Partner to be a top employer in trademark law and competition law In the current edition of the magazine Azur 100, published by JUVE Verlag, Preu Bohlig & Partner has been named as a top employer in the area of trademark law and competition law The magazine, published annually, informs young lawyers of those employers in Germany whom the Azur editorial team believe to be particularly attractive The editorial team selects commercial law firms, legal departments, authorities and consultancies on the basis of several criteria (eg new appointments), including in specialised areas such as trademark law Newsletter February

13 Authority imposes a EUR 140,000 fine for the unauthorised storage of health data The Interior Ministry of the State of Baden-Württemberg, in its capacity as supervisory authority for data protection, has issued a decision to fine the two largest individual companies of the Müller group EUR 137,500 for breach of the data protection regulations After reports in the media that the reasons for employees illnesses, discussed in staff interviews within the companies, were systematically recorded, the supervisory authority initiated an examination of the companies data protection procedures It was discovered that for years the companies have held interviews with employees relating to sick leave In these interviews questions were asked about the causes of illness, which were then noted in the records of the interviews The records were passed on to the central personnel department, where they were recorded electronically and saved The data protection authority was critical, saying that in the majority of cases the companies should not even have asked about the cause, and therefore the collection of data was in itself unlawful The employees had not been informed about what information they were obliged to give, nor had they been told what would be done with the details they gave Regardless of this, it was not necessary to record and save the data The data should not have been sent to the group s central personnel department without written consent In addition, Müller had not appointed a data protection officer The ultimate amount of the fine was relatively low with regard to the number of breaches, as the companies admitted their error and were prepared to take corrective action The German Data Protection Act actually provides for a fine of up to EUR 300,00000 for each breach Despite a few scandals in recent years, the subject of data protection has always been somewhat neglected Not many companies have a corporate data protection officer within the enterprise, or a sound data protection strategy The strict data protection requirements are frequently disregarded in IT service contracts, as they are in contracts with external employment agencies, newsletter dispatchers and call centres, which all come into contact with personal data about their client The action of the Baden-Württemberg authority shows that breaches of the data protection regulations are no longer considered a trivial offence, but can cost perpetrators dearly Thorsten Müller-Winterhager Attorney at law Berlin Incoterms 2010 The new Incoterms 2010 of the International Chamber of Commerce (ICC) have been in force since Implementation of the new code The immediate implementation of the new code is neither com- pulsory nor obligatory However, we do advise clients, especially those involved in exports and imports, to update their terms and conditions in line with the new Incoterms ( Incoterms 2010 ) or to check their existing rules Incoterms 2010 offer more clarity than the previous version, Incoterms 2000 Newsletter February

14 For the new Incoterms 2010 to achieve validity, they had to satisfy all the requirements of typical terms and conditions of business 12 The most important changes The clauses DAF, DES, DEQ and DDU from the previous version have now been removed on the grounds that they would not be enforced The deleted clauses have been replaced by DAT: Delivered at Terminal (named destination port or place) and DAP: Delivered at Place (named destination place) The Incoterms 2010 are now divided into two different transport mode groups: The clauses FAS, FOB, CFR and CIF are only intended for sea and inland waterways transport where both the point of delivery destination and the place to which the goods are carried is a port All other clauses, ie EXW, FCA, CPT, CIP, DAT, DAP and DDP are intended for all modes of transport (water, over land, by air) The infamous hoisting risk maritime and inland waterways transport clauses have been omitted Until now, the risk was transferred to the buyer as soon as the goods were lifted over the railing onto the ship, for example if they were still in the air during the loading process, fell into the water and were damaged Now delivery is only complete once the goods have been unloaded on board the ship (but not yet stowed away) This results above all in the need to revise insurance contracts The sale of floating goods is now also covered by the Incoterms 2010: the seller has complied with its delivery obligation once the goods already on the ship have reached the buyer, eg sales of raw materials and string sales Further changes to the clauses, eg cost allocation with regard to port handling charges, have been clarified 13 Proposal Instead of the previous Incoterms, FCA (named place), Incoterms 2010, shall become applicable with effect as of (date) If required, we will be pleased to provide you with further information on details of the new Incoterms 2010 Sebastian Frhr von Bechtolsheim, Isabel von Gerstenbergk-Helldorff Attorneys at law Munich Incoterms 2010 All modes of transport EXW FCA CPT CIP DAT DAP DDP Ex Works (named place of delivery) Free Carrier (named place of delivery) Carriage Paid To (named place of destination) Carriage and Insurance Paid To (named place of destination) Delivered At Terminal (at port or place of destination) Delivered At Place (named place of destination) Delivered Duty Paid (named place of destination) Transport by water FAS FOB CFR CIF Free Alongside Ship (named port of shipment) Free on Board (named port of shipment) Cost and Freight (named port of destination) Cost, Insurance, Freight (named port of destination) Transport by air FCA Free Carrier (named place of delivery) Rail transport FCA Free Carrier (named place of delivery) Newsletter February

15 Would you like to receive our Newsletter? PREU BOHLIG & PARTNER Ms Carolin Maluck Fax +49 (0) or If your colleagues or members of other departments would be interested in receiving our newsletter, please send the completed form to the fax number or address above Firm Name Position Address Postcode/Town (required) Newsletter German English The Preu Bohlig & Partner newsletter is sent out periodically by If you no longer wish to receive our newsletter, please send an to the reply-to address on the newsletter or to the above address You will be removed from our subscriber list immediately The newsletter is of course free of charge Newsletter February

16 Our Offices Berlin Grolmanstraße Berlin Tel +49 (0) Fax +49 (0) Düsseldorf Freiligrathstraße Düsseldorf Tel +49 (0) Fax +49 (0) Hamburg Warburgstraße Hamburg Tel +49 (0) Fax +49 (0) München Leopoldstraße 11a München Tel +49 (0) Fax +49 (0) wwwpreubohligde Bildquelle: Picture credits: Fotolia Fotolia Newsletter February

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