German courts have been dealing with the Metall auf Metall [song by the German band Kraftwerk] case for two decades. Recently, the CJEU, too, has had to deal with the case and ruled by judgment of 29 July 2019 (C-476/17) that unless the phonogram producer consents, sampling constitutes an infringement of his rights. However, the CJEU argued, if, by modifying the sample, it can be ruled out that the content is recognizable, there is no infringement of rights. Background The Plaintiffs are members of the band Kraftwerk, which, in 1977,
Hogan Lovells’ U.S. + German Patent Update reports on recent patent news and cases from Germany and the United States. The most recent update is available in English here. This update covers the following developments across the U.S. and Germany: United States PTAB Has Discretion to Join Parties and New Issues in “Limited Circumstances” – Proppant Express Investments, LLC v. Oren Technologies, LLC (13 March 2019) PTAB Establishes New Precedent and Pilot Program for Motions to Amend – Lectrosonics, Inc. v. Zaxcom, Inc. (25 February 2019, Designated Precedential 7 March
Hogan Lovells global IPMT practice has been awarded the accolade of ‘Global IP Firm of the Year’ at the Managing Intellectual Property North America awards – becoming the first firm to win the award in consecutive years and the only firm to win it three times. The award recognizes the strength of our global practice and the excellent work done by our teams in assisting clients on business critical matters. This is underpinned by MIP also awarding us: Germany – Impact Case of the Year for our work on the
Many companies have been struggling with GDPR implementation over the past two years, putting much effort into new roles, privacy concepts, and workflows. Now that the dust of the immediate GDPR compliance rush is settling, the first details of fines imposed under the GDPR and the number of cases pending with Data Protection Authorities (DPAs) in Europe are being made public. In Germany, DPAs are investigating a broad range of non-compliance issues and showing a tendency toward increasing their enforcement activities, to the point that we expect an announcement of
Germany’s highest civil court signs off on the business model behind AdBlock Plus The popular adblocking software AdBlock Plus, and the underlying business model of Eyeo GmbH, do not fall foul of German unfair competition rules. On 19 April, the German Federal Supreme Court (BGH) handed down its landmark ruling on the legality of adblocking (BGH, file number I ZR 154/16). Given that AdBlock Plus is highly popular throughout the world, the decision will have repercussions for online advertising and for publishers of online content far beyond the borders of
Hogan Lovells assists PayPal in securing an important victory for German retail Decision of the German Patent and Trademark Office of 27 March 2018 (ref. no. 30 2013 057 574 – S 33/17/Lösch) The German PTO has seen the light in the dark of the “Black Friday” battles: The term has been declared free for all to use in commerce, signaling the end of a trademark monopoly that has been aggressively exercised against German retail during the past 18 months. Hogan Lovells, represented by Anthonia Ghalamkarizadeh and Dr. Thomas Richter,
According to the German Federal Labor Court, Germany’s highest court for employment disputes, German employers are not allowed to monitor employees in the workplace without a concrete suspicion of a criminal violation or, in some cases, a serious breach of duty (judgment dated July 27, 2017, case ref. 2 AZR 681/16). This means that employer monitoring of an employee’s computer usage without a concrete suspicion, including the use of keylogging software that records all keyboard entries made at a desktop computer does not comply with German data privacy laws. Courts
On 27 April 2017 the German Parliament passed an entirely new Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). The new BDSG replaces the old BDSG, which has been in force for the last 40 years. The new BDSG shall adapt the German law to the provisions of the EU General Data Protection Regulation (GDPR). The new BDSG will now form the basis for the adaption of German acts to the GDPR. Further acts concerning special processing situations like social security data protection are likely to follow. Companies operating in Germany
The Court of Justice of the European Union (CJEU) has ruled that dynamic IP addresses are capable of constituting personal data under certain circumstances, ending years of speculation about whether such essential building blocks of the Internet qualified for protection under the EU Data Protection Directive. In Patrick Breyer v Bundesrepublik Deutschland, the German Federal Court referred two questions to the CJEU in a case brought by Patrick Breyer, a member of the Pirate Party. He challenged the collection and use of dynamic IP addresses (binary numbers assigned by Internet
Eyeo ordered on appeal to whitelist Axel Springer media for free on AdBlock Plus German media house Axel Springer has won a first significant victory in the adblocking battle that has been keeping the digital advertising industry on its toes for over a year now. Read up on the procedural history between German media houses and Eyeo GmbH, the company behind the world’s most popular adblocker AdBlock Plus. Adblocking is steadily on the rise. In a workshop recently organized by the German Federal Commission on the Convergence of Media, the
Big data is no longer a term used only by the digital economy. Competition law agencies in Germany and France significantly ramp-up their enforcement tools in the light of technology-driven market changes. As regulators aim at being on par with market players dealing with big data, such companies need to carefully analyze whether the approach taken in the EU can affect any planned transactions or whether their business model contains any risks of being reviewed by the agencies. The German Bundeskartellamt (Federal Cartel Office or FCO) and the French Autorité
In its Communication on a Digital Single Market Strategy for Europe (DSM) of 6 May 2015, the European Commission committed to assess the role of online platforms. In this context, the Commission launched a sector inquiry into e-commerce (6 May 2015) in order to gather data on the functioning of e-commerce markets and to identify possible competition concerns. In addition, on 24 September 2015 the Commission launched a public consultation seeking views to better understand the social and economic role of platforms, market trends, and the dynamics of platform-development. Since
On 29 September, the District Court of Cologne became the third court in Germany to issue a decision in relation to the trilogy of actions launched by large publishers against adblocking software Adblock Plus. The court rejected publisher Axel Springer’s action against Eyeo GmbH, the German company behind AdBlock Plus. In doing so, the Cologne court agreed with the courts of Hamburg and Munich which in April and May had already rejected parallel actions brought by other large publishing houses, among them RTL, ProSieben Sat.1 Digital and Handelsblatt.
Introduction to mobile Health and data protection laws The mobile Health (mHealth) sector is rapidly developing and revolutionising the healthcare market. More and more consumers share information such as medical and physiological conditions, lifestyles, daily activity and geolocation via all kinds of health-related mobile applications and devices. The growing success of mHealth, however, inevitably casts a spotlight on compliance with privacy protection laws. Data protection agencies (DPAs) and supervisory bodies in the EU recently raised concerns about the collection, processing and use of customers’ data by mHealth apps and mobile
The German Regional Court of Munich (Decision No. 7 O 14719/12) has referred various questions to the CJEU seeking clarification on the liability of businesses that provide password-free WIFI access for copyright infringements carried out by their users. In the case at hand a German shop owner that sold and let sound and light equipment for events provided a password-free WIFI access from his shop. The WIFI was named after the website of his shop in the hope that this would interest people in nearby cafes and shops to use the
How much protection against the media is an eleven-year-old child of a celebrity entitled to while participating in a sports competition? The German Federal Court of Justice (Bundesgerichtshof) answered this question recently (case reference VI ZR 125/12 of 28 May 2013): At the age of eleven, Princess Alexandra, daughter of Princess Caroline of Hanover, had participated in a figure skating competition in Toulon (France). While the competition had attracted only regional attention, “Freizeit Revue”, a German glossy entertainment magazine, published an article on Alexandra being a participant of the competition.
COURT OF APPEAL OF COLOGNE, DECISION OF 14 SEPTEMBER 2012, NO. 6 U 73/12, “CHERRY STONES” The Court of Appeal of Cologne once again held that embedding content in a frame does not constitute copyright infringement. Thus, the legal situation in Germany regarding the liability for third party content in frames is still somewhat unclear. The defendant granted on its website access to the e-commerce platform Amazon. Access was provided in a frame embedded in the defendant’s website without any change of the domain as displayed in the browser’s address bar.
In a recent decision, the Higher Regional Court of Düsseldorf held that data controllers may claim immediate surrender of customer data in the insolvency of marketing agencies and IT service providers in Germany under section 47 of the German Insolvency Statute (decision of 27 September 2012, file number: I-6 241/11; view a German text version of this decision). Final decision is expected to be taken in the course of 2014 by the Federal Supreme Court, which is appointed to decide on the insolvency administrator’s appeal.