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Federal Labour Court for Collective bondage - Change in an OT membership

(Stuttgart) Several on 12/15/2010 by the Fourth Division of the Federal Labor Court (BAG) decided Parallel cases have unionized plaintiffs claims for tariff benefits claims of a salary and wage agreement of the retail trade in Saxony Anhalt.

this case, the Stuttgart labor law specialist Michael Henn, President of the VdAA - Association of German labor law lawyers e. V., headquartered in Stuttgart, was it essentially a question of whether the defendant is bound by the requirements underlying collective agreements from 2006 or was already in 2001 effectively changed from full membership of a member without bargaining coverage (OT membership).

The Senate confirmed its previous case law, an employer may provide to the association in its charter membership in an OT-phased, not the collective bondage in accordance with § 3 para 1 TVG out. According to this model, employers subject to collective constraint, together with such organized without a collective bondage under one roof. However, it must be ensured by the statutes that OT-members on collective political decisions have no direct influence. For the functioning of collective bargaining requires a view to concluding collective agreements and their normative effect on third parties affected by this principle with respect to the synchronization of responsibility and concern of the collective agreements. This can also be assured by a very general, but clear rules to separate the powers of OT and full members.

After these Standards had opened one of employers' organization affected the ability of OT-effective membership. This defendant had used the 2001, so they concluded subsequently to the collective agreements, which were based on the plaintiffs was not committed and dismissed the complaints with the courts below were.

on the effectiveness of the removal of tariff constraint also changed the provision is nothing that the transfer statement "until the expiration of the applicable collective agreements" works. These statutes, though not literally, but for meaning, purpose and collective integrity of the end as an indication of the in § 3 paragraph 3 TVG anyway resulting to understand the law. (BAG, ruling of 15 December 2010 - 4 AZR 256/09 - and others).

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arm Bavaria * pfffft *


Since about a year now isser
already here in Bavaria and is once again stirred up panic,
the bird shoot it again (as with Bruno the Bear)
from our great Bavarian politicians!!
If I were reading a bullshit, I get the cold horror!

Excerpt from 'World Online - spread on Bruno's wolf tracks
problem anxiety in Upper Bavaria. "

The Bayrischzell Mayor Helmut Limbrunner (CDU)
least want the wolf comes off.
"We believe that the wolf here in our
has no right to life. We are indeed a
cultural landscape and not Wildzoo," he said on Friday.
The policy should take care of, Environment Minister Markus Söder (CSU)
is required . 'It is his partner, "says Limbrunner
" We do not see an animal you as harassment. "
And with regard to the protection of the wolf and the
he often severely injured and painfully dying sheep.
" The sheep also have a right to life. "

I could puke!

Sad greetings
wool and polar projections

http://wolfsfreunde-germany.blogspot.com/feeds/posts/default?alt=rss

Phlegm In Throat On Babys

iPad marketing started successfully: Axel Springer Media Impact Volkswagen wins as the exclusive customer for IMAGE iPad

One of the most promising approaches for the prevention of a driving ban for a traffic violation may be the assertion of a so-called "instantaneous failure.

Even in the case of an objectively serious and dangerous traffic offense, the requirements for the saying of a driving ban does not, unless the person concerned in the commission of the offense only slight negligence can be attributed to him.

What does "instantaneous failure" exactly?

this is meant a momentary lapse in concentration, also a careful and conscientious driver can not always avoid.

Why is the moment of failure against a driving ban?

In Fines Regulation provides that for certain serious offenses on the road, such as speeding or failing to stop at a red light to impose a driving ban is. However, it is not a legislative command that automatically is mandatory for each case, but to rule examples. The imposition of a driving ban requires that the infringement, in gross or persistent violation of the obligations of a motor vehicle driver was committed (§ 25 para 1 sentence 1 StVG). A rough Breach of duty is in the implementation of a control sample, such as indicated in urban areas the speed limit by 31 km / h, because of the danger of such an abstract reality.

However, it also has to play in individual cases to a failure to act of the person concerned, which is also a subjective point of irresponsibility on a particular driver, that is due a lack of law-abiding attitude. The law assumes that with implementation of a rule typically given this particular example of irresponsibility and negligence, warranting the imposition of a driving ban. There are also atypical patterns are possible, in which the benefit of the individual only by negligence can be assumed.

Slight negligence can be, for example, will be presumed if the person pleads to understand that they have not observed the speed limit or red light by mistake and this mistake is not in turn is due to gross negligence or indifference.

believe Often car or motorcycle driver, for example, they were at the time of speed measurement outside urban areas, because out of the consideration to make, the more profit, are to measuring systems often chosen locations where roads are well developed and with a corresponding number of vehicles excessive speed are expected. Was the person that was flashed in such a "speed trap", non-local and could he force due to missing or incomplete development nor that he was inside a built-up area, he only acted negligently

. The result: Special irresponsibility can not be the victim in this particular case accused. The indication as to the imposition of a driving ban is refuted. by the imposition of a driving ban, apart has since become the offense is missing from a subjective point that the law presumed special weight.

affected should a instantaneous failure speaking circumstances and evidence during the proceedings before the fine detail and authority as possible based on accurate evidence to Tatörtlichkeit and signs (maps, photo, video) state. Only if the person qualifies argues, will address the prosecuting authority or the court with the possibility of instantaneous failures and thus refuting the indication as to the imposition of a ban on driving.

How To Make Flet Slippers

filesharing Current trends in case law - a low value, cost capping

Although it denied many of the warnings in the area of file sharing firms again and again, so now is a certain tendency can be seen in the case law that are regularly made to amounts claimed in copyright warnings from the Court be reduced more and more.

In the following, therefore some decisions from this and last year are presented in support of this trend.

I. The value of the item omission

The copyright in the lichen warnings regularly scheduled object value for the omission is crucial for the reimbursement of the opposing lawyers. So it comes naturally tend to provoke the recognized object values are estimated too high in the warnings in many cases. For example, when alleged copyright infringement of music albums or films of some Abmahnkanzleien object values in the amount of 50,000.00 € deemed appropriate in order to then a corresponding "settlement offer" to suggest Proper, the relevant firms refer here often to the jurisdiction of the Higher Regional Court Cologne, the correspondingly high amounts in dispute seems to be the case, however, more and more to want to put a stop to..

first (Judgement of the district court of Aachen, 16.07.2010, Az: 115 C 77/10)

In this context, the District Court of Aachen in a file-sharing case to the problem of illegal offers of an actual music album with twelve titles decided this year that a contrary of the established in the original warning amount in dispute in the amount of 50,000.00 € such must be considered only in the amount of € 3,000.00 as reasonable. If one were to apply the appropriate decision on copyright warnings of music albums, so could the warnings firms in terms of financial compensation for their use only an amount of € 265.70 demand.

second (Judgement of the District Court of Halle, 24.11.2009, Az: 95 C 3258/09)

In this regard, another decision of the district court hall from the year 2009 is mentioned. There, the district court hall for a reasonable amount in dispute for the illicit supply of a film had to judge. There, the court had an object of the amount of € 1,200.00 for maintained properly, which also significantly differed from the original in the warning or action in the alleged object of value.

third BGH of 12.05.2010 "Summer of our lives" (Federal Supreme Court 12.05.2010-I ZR 121/08)

Regardless of the foregoing, this is not the cost cap of § 97 a UrhG II considered. Also in this year furore caused and euphoric awaited ruling by the Federal here has unfortunately brought no clear clarity. subject of the proceedings in this case was the allegation of copyright infringement on a single song. In the contemporary press release had the Supreme Court announced that it the provision of § 97 a II Copyright Act, which in turn provides a corresponding cost ceiling for the reimbursement of the opposing attorneys to 100, 00 €, holds to be applicable. The Federal Court had then expressed in the grounds with no word on the subject. From the ranks of the warning of this fact is interpreted on a regular basis so that the rule did not apply. Here, however, frequently overlooked that the relevant question for the case to be decided by the Supreme Court was not decisive. Because of the time alleged infringement took place at a time when the relevant provision was not yet existent, so that the Supreme Court in its Enzscheidung this not comment on it and had also waived. In our view, the former press release, however, had clear indication of action, which is rejected by the warnings firms regularly for obvious reasons. The further development remains to be seen.

II license for damages

In the case of a legitimate warning, the owners generally require the Abgemahnt a so-called royalty damages. Here are the warnings from law firms regularly required amounts, for example, for copyright infringement on a track, in the amount of 150,00 €. However, in this respect, as a recent decision of the Landgericht Hamburg Caused a stir (see the LG Hamburg, 10.08.2010, Az: 308 O 710/09). There, the court had in relation to the alleged royalty damages for breach of copyright in a song such a salary in the amount of 15.00 € is appropriate. In this case, was correctly parked on what reasonable parties would have agreed with the conclusion of a fictitious license agreement as a reasonable royalty. In this regard must be given of course that it was at the disputed work to older titles. However, this decision also shows a certain tendency in the case law that the amounts for the appropriate license for damages are often set too high. It means, for example in some of the relevant copyright warnings firms that own the license subject to the offender liable for damages in the five-digit would be set. This is the case of copyright infringement on a single plant in this side view, totally unrealistic, while in reality the court is not even enforceable.

III. Conclusion

Even if it is only such decisions are individual decisions, it some trends in case law can be derived. What is certain is that these decisions the defense positions in the file-sharing defense improved significantly since the the Abmahnkanzleien despite the possibility of selecting the court can not be quite as safe as before. Due to a variety of machined warnings we have the necessary experience to advise you comprehensively in the area of file sharing and defending.

Delete Orange Account

MHG Legal Jena - a criminal organization?

Since short-term investors are written in Germany by the lawyers of the MHG in Jena. Not directly suggest how you should do but on the up by such lawyers and patrons for the Protection of the European consumer rights - in short FSEV.
A look into the register with the No. 515 of the district court Sondershausen reveals that the former board of the association Gerhard was a certain Andrew Morgenstern.
Mr. Andre Gerhard morning star is also a partner of law firm MHG (Andre Gerhard Morgenstern, Steffen Hielscher and Torsten Geissler) in Jena.
thus serves the association, founded in 2007 to catch clients to simultaneously obscure the pursuit of an illegal business model of unscrupulous lawyers from Jena.
Every citizen has any reason the right to inspect the register of associations and can them to check the veracity of the statements in this way.

It can only be recommended to the recipients in each case to make a complaint and ask for information publishers to § 34 BDSG. If the request is not met, it can be filed in court.

is likely there will only be a matter of time before these lawyers down the craft.

Here is a certainly a very interesting link to the topic: http://www.fsev-mhg.com

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warnings of the firm Waldorf Frommer Sony Music: The three? - Path of Fear including radio plays

The firm is currently warns Waldorf Frommer from Munich on behalf of Sony Music Entertainment Germany GmbH.

subject of the warnings are the popular radio plays from the series "The Three Investigators"

including the consequences
path of fear (137)
The secret staircase (138)
The mystery of the Diva (139)
Where is the Connection owners to deliver an imitator, the payment of legal costs and damages incurred. The Abgemahnt shall submit a settlement offer from 856.00 EUR.

is claimed that the audio book was offered on the Internet Abgemahnt for download. It was also indicated that regardless of the actual perpetration, Sony BMG was entitled to substantial damages, as the Abgemahnt in any event be obligated to reimburse the legal costs and the required expenses according to § 97 a UrhG.

If the connection shall be liable for damages or for the costs of warning depends However, the individual case. A note the recent decision by the BGH of 12 May 2010:

If you follow the reasoning of the Supreme Court, so therefore there is no general and "automatic" liability

The court thus presupposes a violation of auditing requirements, which leads only to a liability then individuals have a duty to be reasonably.. to examine ways that the port is through adequate safeguards adequately protected against being abused by outside third parties for the commission of violations. What is reasonable, are determined first by the respective technical capabilities, the connection owner is only obligated at the time use of purchase of the router for the private sector arm's backups.

How should one behave?

A response to the warning should be done in any case, since the Abgemahnt otherwise you risk the opening of court proceedings (interim order or injunction). This leads to much higher costs of infringement litigation.

The requested cease and desist should not be turned over in the format requested. It goes beyond that which may require the warning. The explanation is, therefore, modify it under expert advice. In particular, often the whole repertoire of the copyright holder is included, far beyond what the act of infringement goes out

Beware also cautions that decided to take matters in hand and explain your point of view of the firm warning letters. You risk giving the other party information to the hand that can be used against you.

If you have been recipients of a warning, we are happy to develop a strategy based on the individual case and your agent nation-wide. We have experience in hundreds of Abmahnfällen and throughout Germany.

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parents keep

be, we are increasingly sought by clients that are prompted by the welfare agency to pay for their parents living. Parents are always dependent for their children. Some children like to do this, it does not then naturally to such a dispute. But often these relationships are very turbid. The Supreme Court once again explained to (Az XII ZR 148/09) that a disruption of family relationships within the meaning of § 1611 BGB generally not sufficient to establish undue hardship as defined in Book XII. The forfeiture for serious misconduct put forward rather the fault of the creditor, it is not enough if he had acted intentionally in a natural sense.

Samples Of Congratulatory Speech

landmark decision of the Supreme Court to pay compensation for the revocation of a consumer

The Federal Court in a decision dated 03.11.2010 (VIII ZR 337/09) the duty to compensate a consumer for the revocation of a distance contract affirmed and rejected any cuts due to the putting.

background of the decision was a closed in August 2008 purchase agreement for a water bed for the price of 1,265 €. As part of the cancellation was noted that regular filling of the mattress of the waterbed deteriorate and not because the crib is to sell as new. After the water bed was delivered to the purchaser, built on this water bed and the mattress filled with water. He then exercised his right of withdrawal and called the seller to refund the purchase price on. The vendor reported only a partial amount of 258 € and claimed that the bed due to the putting was no longer for sale. Only the heating with a value of 258 € is recyclable.

The district court has granted for repayment of the balance of the purchase price of 1.007 € directed action in the first instance. The district court dismissed the appeal following the seller. Directed against the revision of the seller before the Federal Court had now no success. As a result, the Eighth Civil Division of the Federal Court stated that the buyer may demand the return occurred despite the depreciation of the full purchase price may, if he has examined the goods only. It remains to be noted: A time avowed opposition by the Consumer in the distance contract has the effect that it has received are to be returned by the Parties. As far as the object received has deteriorated or has been destroyed in the meantime, the debtor must pay compensation instead of return. In this case, the consumer must also pay compensation for a pay by the intended putting into use of deterioration caused when he was alerted to the latest on the contract in writing to this consequence and a way to avoid them. The liability for compensation is not, however, if the deterioration due entirely to the examination of the matter is. Since the deterioration was due in this case solely on the examination of the case, the structure of the bed and filling the mattress with water was used to test the revision was rejected.

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Longtime workers cheating by 160 € - invalid termination

We have already reported that the Federal Labour Court (BAG) has amended its law in property crimes. In the "Emmely" the BAG had declared a cancellation without notice due to recovery of coupons to the value of 1.30 EUR to be ineffective. So far, it was so that the BAG justified, even for very minor theft cases dismissed without notice for held. In the "Emmely" resulted from the BAG, the offense was indeed serious, ultimately would but, given the associated with the termination serious losses that outweigh the benefit of the applicant in the consideration to be included viewpoints. In particular, the over thirty years include no legally relevant defects extending employment, would have acquired by the applicant with a high level of confidence. That belief has been the non-atypical and unique in many respects, termination of affairs completely destroyed. As part of the assessment is to take into account the relatively minor damage. So be a warning was appropriate and sufficient.

now has the country's Labor Court (LAG) Berlin / Brandenburg in a decision of 09.16.2010 (ref. 2 SA 509/10) explains the dismissal of a railway employee to be ineffective. This was employed for 40 years as a train ready and Erin had celebrated her 40th anniversary of service to colleagues. She then presented the employer received from the catering company complacency receipt for 250.00 EUR for entertainment expenses and had to refund that amount. The actual costs were only at around 90.00 EUR. The employer was the scheme to take proven entertainment expenses reimbursed up to 250.00 EUR be. Referring to the case "Emmely" the LAG has taken into account primarily the 40-year-old Complaint Free time employment in favor of the worker, which led to a very high "confidence capital". This had been destroyed not by a single offense. It should also be taken into account that the employee immediately admitted the violation, they found themselves in the act outside of their normal business and they have not committed the breach in the core area of its activity. All these factors have for the opinion it was the employer's interest in terminating the employment relationship, the face of massive fraud plot quite a very high weight would have been attributed, ultimately prevailed.

Here was the rare peculiarity that the employee collective agreement is no longer properly, ie with the usual notice period of seven months, then, was terminated and the employment relationship therefore continued. Otherwise, the LAG would be probably at least take the alternative, timely termination and the employee would be eliminated with a period of seven months.

Even this ruling is worrying. Anyone who tries to cheat his employer to 160.00 EUR, has destroyed the trust term. Workers can only be warned not to steal things or in the future Property crimes to commit. Employers will continue in such cases with immediate termination very good chance of success, and should not shy away from such a status.

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copyright - use of third party images / photos

The idea of an image from another vendor is used to implement fast and can just as quickly become an expensive affair. Because copyright protects the provider from having his picture material is used without its prior consent, § § 15 et seq Copyright Act (UrhG). In the course of a received warning you see then exposed to high Abmahnkosten quickly.

In legal terms, are photographs photographic works acc. § 2, No. 5 Copyright Act, or at least according to photographs. § 72 Copyright Act.

is According to § 72 para 2 UrhG the light generator to the exclusive right to use, copying and dissemination.

a copyrighted photograph may be, without the prior permission of the photographer as author not be reproduced, distributed or made publicly available, ie can be set to the Internet.

Under § § 2, No. 5, 72 Copyright Act, any photograph or photographs, is protected if it has reached a certain threshold of originality. Under the principle of "small coin" apply to the patentability of photographic works. Here are few requirements, so traveling telling shots which were not created to protect wahrlos objects. A special level of creative and creative design is not required.

The infringer faces injunction damages, as well as information requirements, and legal costs suspended.

injunction

Contrary to the assertion of Schadenseratzansprüchen consists of injunctive relief, regardless of fault of the user. So it does not matter that the user was aware of the copyright of another. In this context it should be noted that an appropriate copyright notice for the existence of copyright irrelevant. Proof of authorship to a photo is always on the submission of the image file. On the higher resolution of a recording, it is assumed that only their authors and the owner of the exclusive rights of use.

compensation claim

case of copyright infringement, the injured in accordance with § 97 of the Copyright Act (UrhG) a claim for damages. The problem is the question of how to calculate the damage in concrete terms. recognized in the case are three variants of the damage calculation, namely

- the actual damage, in particular loss of profit

- the violator's

- Damage calculation by license analogy.

In most Cases, the quantification of a specific defect or a specific infringer's very difficult.

common practice is therefore a calculation of damages under the so-called license analogy. It is a license agreement fiction. This is based on the idea that the person injured should not be made better off than he would have been granted with permission of the copyright holder.

Regarding the amount of license fee, for example, the rates of VGBildkunst or the tariff rates of the SME Community Photo Marketing (MFM) is used as a guideline.

Sample Of A Commercial Offer

compensation claim in Trademark License Agreement

is basically known to the agent on termination of agency contracts may have a right to compensation by the employers pursuant to § 89b HGB. The termination shall be by notice to the proprietor or for example, by a termination agreement.

is already so well known that the Supreme Court applied in accordance with § 89b HGB compensation claim with other contracts. Also in dealer contracts or franchise agreements can the dealer or franchisee a right to compensation on termination of the contract entitled. In principle, one could ask whether this law applies to a Contract for the license.

The Supreme Court (Judgement of 29.04.2010 - I ZR 3 / 09 - JOOP) has now ruled that a compensation claim even if the licensee a trademark licensing agreement is considered in principle. However, here again, the conditions for the appropriate application of § present 89b HGB, namely in particular the involvement in the sales organization of the contractor and the agreement that the customer base to the manufacturer or supplier should be the extent transferred, so that the benefits of the customer base now and make readily available.

If the aforementioned conditions, so also the licensee at the termination of the licensing agreement the licensor of the compensation for the customers demand. This may be a significant burden on the licensee or an economically very welcome payment the licensee to act.

What Is Half Head Of Highlights?

Expensive paparazzi photo to Bild am Sonntag

The publisher of the weekly Bild am Sonntag has to pay € 50,000 license fee to a 75-year-old photographer, because it published in any manner a paparazzi photo along with articles by him and his wife in their paper. The photo shows the photographer with his wife on his yacht when he reads the image on Sunday. The article next to the photo just stressed the fact that the photographer "as more than eleven millions of other German and" the Bild am Sonntag regularly reads. The photographer then got a fee of 50,000 € for the advertising was collecting the photos and article . The reason was the Ruling, that the publisher has interfered unlawfully in his general right to privacy and his right to their own image and has become an asset to its cost advantage. The image and accompanying text presents the photographer in an obvious situation of the private public, in which he could expect to be unobserved. In contrast, there is only a small privileged information of general interest. Even if it is the photographer for a prominent person of a certain historical significance, the right to protection outweighs the personal sphere to the public interest. Also exacerbates the high attention value Article added. He was in large format in a prominent place on the last page of the newspaper. (OLG Hamburg, Judgement of 08.10.2010, Az: 7 U 130/09)

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right to inspect medical records

you are in your daily practice time and again confronted with the desire of patients, their heirs or other parties and take in medical records of a patient access to want.

Put in this context, several questions: Who should inspect? As far as the right to inspect? Can I prevent this? The following is a brief overview of the most common situations.

first Who owns the medical records?

preliminary arises already the question of who the medical records belong. They are the property of the doctor, the person making it. The medical records do not only serve the statutory documentation requirements, but also the reminder of the physician, the evidence and possible quality control measures. The doctor can proceed with his property freely. He will be limited only by legal regulations. These are, in this connection, the storage requirement and medical confidentiality.

second The patient himself will inspect

If the medical records but are the property of the doctor, he must then give the patient insight? This question is clearly answered with "yes". This is both case law of the Federal Constitutional Court and the other prescribed in § 10 para 2 of the MBO for medical or § 12 para 4 of the MBO for dentists. The right of inspection results in particular from the right of patients to self-determination and personal dignity. You are therefore required in principle to the patient in your practice areas, the inspection grant. The patient can make in your practice at their own expense, copies. However, he has no right to the entrainment of the original documents.

includes principle, the right to inspect the entire medical records, including all-made notes on the clinical picture of Patients and identifying the patient is this case itself to meet the individual case, the balance between the right of patients to self-determination and the personal rights of the doctor who has an interest in the records which are only for him and not for the patient, to black.

The Federal Constitutional Court by order dated 09.01.2006 the right of patients assumed to have a considerable weight, so that the inspection will be rejected in all the notes only in exceptional cases. The problem arises in particular whenever the right of inspection meets with your medical concerns. This may be the case not yet confirmed diagnoses serious diseases, the risk of depression in psychiatric and his findings. Also in this case there is the fundamental right of access. However, flows into the consideration of whether the personal records of the "therapists" must be disclosed, the question of the possible adverse effects on patients with one.

The District Court of Bremen has committed in a partial decision of 25.07.2008 a therapist, the nachbehandelnden to provide medical consultation, so that decides what information the patient can get safely. The doctor was allowed to pre-treatment, however, previously black notes he had made for himself about the patient and were close on his own personality.

third Inspection by third parties

In the event that the patient's right of inspection to a third party (insurance company, pension insurance, health care professional) are contractually cedes that specified above.

So, the District Court Duisburg Judgement of 16.08.2007, that a doctor's obligation to the patient as possible to help, through the release of medical records to a specialist for further treatment sufficient enforcement colleagues. You should, however, the Medical Records of patients in each case carefully.

your duty of discretion is, moreover, to the police and the prosecutor. Again, the issue may be required only when there is an effective medical records. Otherwise, it requires a court order by the presumed will be the patients.

4th Inspection by the heirs

The inspection request of the heirs of a patient should be treated the same way as the inspection of any other third party. In a present of Medical Records, you are obliged to grant the inspection.

In the event that you are accused of medical malpractice, you should grant access because of the presumed consent of the deceased must be assumed.

5th Inspection by MDK and financial authorities

Compared with the MDK are you to transmit the data requested by law (§ 275 SGB V) required. It is important to the request of the inspection report to the eighth and surrendered only the requested documents. If not requested documents mitübermittelt, this is a breach of the duty of dar.

Compared to the tax authorities, you are obliged for reasons of public policy (decision of the Federal Administrative Court) to disclose. Medical confidentiality resigns here.

6th Conclusion

you should consult your notes always be aware that there are various inspection facilities. Especially in the foreign history, you should indicate that the patient could possibly inspect the records. Whether the statements of relatives / friends are still relevant then, but the question

What Does A First Period Look Like?

After quite unfair warning: pay lawyer must damages

The following decision relates to a very unfair competition Abmahnserie the now defunct webdiscount4you.ltd. This, we showed in the autumn of 2008 Abmahnverhalten quite abusive. finally decided on this the LG Würzburg 21.10.2008 (file number 14 O 1631/08) has. This decision used to be a great success, because at this moment no decisions were due to abuse of rights. The approach of the opposing attorney was so conspicuous that our clients here and set to defend against legal costs that could offset the economically powerful Limited, have made directly to the lawyer claimed the Limited. After a long legal dispute until we were finally able to successfully ride the following sentence, with the warning of the limited attorney was sentenced to personally bear the costs. To our knowledge, this was the first decision in which a lawyer has been successfully regress without the procedure was parallel to the warnings party.

Specifically, it is called in this decision:

facts

The class makes MoM. the defendant for reimbursement of pre-trial legal fees due to an intentionally immoral injury claims. The class is in the area of trade in Pet Shops and operates under the company "C" on the Internet as their business is not entitled to deduct Kleinunternehmerin.Der defendant is a consultant from W, which appeared on the Internet. Here, they also offered Pet Supplies on, with prices sometimes inflated to 15 times the normal market price and also some items were faulty was described on the website listed no longer operated in mind that.: "In these pages products and prices shown do not constitute offers, they serve as a showcase to illustrate the functionality of the ePages system." The W was incorporated on 30.5.2008. In a letter v. 9.10.2008 warned the defendant on behalf of the W is the class because of a breach of competition from and demanded the reimbursement of costs incurred for its operations amounting to € 899.40. In a letter v. 9.19.2008 were opposed to the current representative plaintiffs as represented by the class warning. costs incurred for the class amounting to € 899.40, which it now makes MoM. the defendant contends. Overall, warned the defendant for the W into around 20 other companies, and in any event 13 Warnings in the period v. 21.7. until 08.29.2008 and in each case made a claim for reimbursement of attorney, € 899.40 was claimed. Various against other firms from the W trials were conducted from the A AG, whose board sits in the defendant says finanziert.Die class, you would MoM. the defendant's claim for damages from intentional injury according immoral. § 826 BGB. The defendant had cooperated with the W collusive to harm other companies and thereby enrich themselves.

For the reasons

The action is well founded. The class is the alleged damage claim MoM. the defendant made a willfully immoral according injury. § 826 BGB. The notice served on the defendant MoM. The class was very abusive and sittenwidrig.Eine immorality is given if, after their general character, which is to be determined by content, motives and purpose, against the decency of fair and just thinking contrary (Palandt / Sprau, BGB, § 826 para . 4). For the present immorality talks already, that the alleged injunction acc. § § 8 paragraph 1, 3, 4 No. 11 UWG according to § 8 paragraph 4 UWG was quite unfair. The Court concludes that regard, the legal opinions and findings of the LG Marburg in the ruling of 09.09.2008 (ref. 2 O 252/08) and the LG Würzburg, Judgement of 21.10.2008, (ref. 14 O 1631/08 [= MMR 2009, p. 200]) to. An injunction is an abuse of rights whenever go out in all the circumstances of this is that the legal action brought against the competitors are used to make a claim against him for reimbursement of expenses and costs incurred by the prosecution. Such circumstances are regularly present when the players made themselves being marginal, the competitive relationship between the parties, only slightly, the warning inaccurate or incomplete terms of clauses of minor concerns, which are billed to an exaggerated charges in dispute and also many other competitors, which also has only a marginal competitive relationship to be taken in the same way in claim (BGH, Judgement of 5.10.2000, AZ I ZR 237/98). For the abuse of rights in this case the warning says that the client of the defendant even on the market was not active. The website set up by her had several faulty item titles and also a number significantly above the market value prices. Finally, at the website clearly indicated that the rates on your page to see prices to illustrate the function of ... Shop system used. From all this also is clear that in fact a mark of participation is not W is and not intended. In addition, after the establishment of the W on 5/30/2008 abmahnte in this short period of over 20 competitors, while alleged especially in the period 21.7. 29/08/2008 13 warning letters to explain the defendant did. All this suggests that the W in conjunction with its consultant it, namely the defendant solely of efforts to achieve revenue and by warnings in this regard to enrich at the expense of others. After all, the 20 warning letters and the detailed notes of the defendant's costs of € 899.40 each a total of nearly € 18,000 would - cause at the expense of W, which could not pay at all. Consequently, the quantity of the warning was not in proportion the quality of the market participation of W. The targeting of other market participants without any apparent personal interest in the sale of goods is indicated not only the extent of rights in the warning, but also the immorality of Verhaltens.Dabei the court assumes that the W to the collusive defendant has cooperated. The defendant is in itself, as a consultant to be hired by the W. The fact that the W itself exercised no market activity was also aware of the defendant. As CEO of A Ltd and in his capacity as advisor to the W knew he had insight into their business activities and, therefore, that a serious participation in the market should not be. Rather, the defendant intended, by the additional warnings earn money. This was done without their own risk as to the outside as the W-adhesive occurred. It is well known that executions in England not only with increased costs and time are connected, but on a regular basis due to the limited liability of claims for payment of these W MoM. remain unsuccessful. The chosen design could lead to the defendant without its own financial risk and to his warnings and enrichment processes and thus hope to payments by third parties. In that regard, he acted not only with the W together immoral, but also vorsätzlich.Unerheblich is whether the class or its lawyer has acted anti-competitively. Even if this is the case should have been, not the liability of the defendant in the present intentionally immoral injury. Through the deliberate immoral behavior of the defendant joined in the class A damage in the form of pre-litigation attorney's fees incurred.

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Supreme Court decides on the recognition of tax benefits for investments

The Third Civil Division of the Federal Court had to decide again on the question of recognition of tax benefits arising from an investment, (BGH, Judgement of 15.05.2010 - III ZR 336/08). The plaintiff sued the

defendant for damages for an investment, which he had drawn. He demanded back the subscription amount, the defendant said that the plaintiff has obtained tax benefits should be credited.

According to the BGH recognition of tax benefits is in the process damages the investor's generally not considered, although you might find the damages subject to taxation. Something else may also apply when Evidence of exceptional tax advantages exist to the injured remain under consideration of the controllability of the compensation, for such circumstances but with the injury, the pleading and proof.

According to the Federal Court judge would enforce a claim for compensation unreasonably difficult, if known tax benefits would be deducted from the investment of the compensation claim and leave it to the injured party would that be asserted from the taxation of compensation for handicaps at a later date . Moreover, would computational advantages that may arise from the fact that the victim a tariff reduction under § 34 para 1 No 1 Income Tax Act or a general lowering of tax rates leads to good, do not constitute exceptional tax benefits that would relieve the tortfeasor of his liability for damages.

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