Tag: law & taxes

Recently, a decision for the post processing of non-performing insurance by cancellation risk communication adopted new reasoning capabilities against Commission recovery decisions BGH, judgment of December 1, 2010 – VIII ZR 310/09 which has German Federal Supreme Court (BGH). The decision refers to that claim of an insurance representative on the Commission only arises if the policyholder has paid the premiums from which the Commission is calculated (section 92 (4) German Commercial Code – HGB). The policyholder does not pay the due premium and this is however due to circumstances for which the insurance company is not responsible, the Commission again (Section 87a paragraph 3 HGB) is not valid for. Provided advances on the Commission are then again to repay. It is widely recognized that the non-payment of the premium or cancellation of insurance contract from an insurance company then cannot be justified is if the troubled treaty sufficiently “reworked”. To the Finishing non-performing insurance contracts after the insurance companies take their own measures against cancellation or limited opportunity to give the insurance representative by a cancellation risk communication to revise the Treaty itself. Add to your understanding with Kevin Ulrich MGM. In the event of a dispute is set out by the insurance company and to prove that the cancellation measures were sufficient according to kind and extent.

Own actions against cancellation risk by the insurance company, so the BGH has now found, the policyholders to fulfil its contractual obligation must be admonished seriously and strongly. The mere sending of a letter is not sufficient for this purpose. An insurance undertaking descendant also only his compulsory cancellation security sufficiently, so the federal judge, when it sends a message to the insurance agent that enables them to take cancellation measures risk. This cancellation risk communication must in time be sent to the insurance agent. that in the normal course of their timely input is expected.

The insurer shall send the cancellation risk communication by mail, so he should trust according to the BGH, in principle it, that the mailing will properly promoted and delivered on the next business day if it is abandoned in the Federal territory on weekdays. A cancellation risk communication is lost for once by post this – be it and thus the this related and thus failure post-processing measure of insurance agent – a fact not to answer the insurers have. The Supreme Court has also stated in the decision that the applicable only for insurance agents obligation cancellation risk communication on insurance agencies apply mutatis mutandis is if this is just as worthy of protection in individual cases such as an insurance agent. When this is the case, depends on the particular circumstances of each case. There must be a strong convergence of the position of the broker to the one a representative in each case. This was the case, for example, so the Supreme Court, if the broker in the organizational structure of an insurance company is incorporated and receives a grant of the Organization as well as a stock care money. Lawyer Dietmar Goerz of financial service manager sales specialized GPC Law law firm mbH believes, that the decision opened insurance intermediaries some starting points, to put up against a Commission recovery decisions to fight back”. In addition, it is now clear that under certain conditions even insurance agencies against Commission recovery can succeed in the field, that the cancellation risk communications of the insurer was not good enough”, so the Berlin lawyer. Related link: BGH, 01.12.2010 – VIII ZR 310/09

LG Berlin granted “Like button warning” first removal (Facebook integration in Web shops) we had already early February about the threat of a new wave of protection due to the Facebook “Like Button” in Web shops integration reported. It how expected didn’t last long, until the courts had to deal with this issue. Before the land Court of Berlin was now for the first time tried to obtain an injunction against a shop owner. The request was as follows: the applicant sought to prohibit the defendant to the avoidance of a to be determined for each case of infringement court order money up to EUR 250.000,00, alternatively Ordnungshaft or Ordnungshaft up to six months, with the Ordnungshaft a total of two years may not exceed, to offer the purchase of Star baptisms in the course of trade on the Internet and to use the Facebook button “I like” on his page…, if he does not at the same time expressly informed visitors to the site while on the transmission of data related to Facebook, if this as in Plant AS 6 is shown. The Berlin District Court has granted the request of the applicant but a rebuff and rejected the request for a temporary injunction (cf. Boxer often says this. LG Berlin, v. 14.03.2011., AZ.: 91 O 25/11). Rotary and pivot point was the question of whether TMG 13 to a so-called “market conduct”.

The judge denied this case: However, this is not the case. According to the jurisprudence of the Federal Court of justice no. 11 is in accordance with 4 UWG unfairly, who a statutory provision is contrary to, which is also intended to regulate the market conduct in the interests of the market participants. The injured norm must have anyway, hence the function to create a level playing field for competitors in a market (see BGH in GRUR 2000,Seite 1059 emissions).

The dangers of a cease and desist! Did you get a warning? Let first the risks of a Unerlassungserklarung free and unverbinglich learn about you! More and more people be dunned down due to copyright infringement on the Internet. Required the Declaration of default and additional compensation, the amount of which is often happening between 290 and 1500 is regularly. Experience shows that many of those affected by the warning letter are overwhelmed and in the heat of battle, the sign Declaration attached letters writing. This can lead to extensive further consequences. After all the declarant for 30 years pledged a failure.

In the cease and desist the declarant undertakes a specific unlawful conduct to refrain from. Is a cease and desist, the declarant is no longer possible to refrain from consuming. The cease and desist eliminated for an injunction or restraining Available required “risk”. Sela Ward: the source for more info. The risk can be eliminated only if the declarant in the cease and desist in the case of a further infringement committed to pay a reasonable penalty. Otherwise, the Declaration of discontinuance may be rejected by the rights holder. On the enforcement of a claim for damages, the Declaration has no effect. The enforcement will remain as before. To eliminate the risk and to avoid court proceedings, never issued the Declaration included in the warning. Sela Ward takes a slightly different approach.

A modified explanations, a so-called modified cease and desist, is suitable to eliminate the risk of repetition, as long as the declarant is committed itself, that criticized behavior refrain and the Declaration is sufficiently decreed him. Depends on each individual case, how far is the cease and desist to grasp. Many titles were for the upload ready kept it can be advisable further to include the Declaration of discontinuance (first a title is warned off, a short time later the next) to prevent subsequent cease and desist letters. We will inform you on our blog about the individual aspects of the cease and desist in the near future. Next we will present important court decisions in the copyright law to cease and desist. Her Tobias Arnold