Germany (‘.de’)

Author(s):  
Torsten Bettinger

Disputes arising under trademark and competition law owing to the registration and use of domain names have become commonplace in German courts. Following a phase of widespread legal uncertainty, in the meantime the core problems of domain names under trademark and competition law have been resolved. There are more than 50 judgments from the German Federal Supreme Court (BGH) and a multitude of decisions from the courts of the lower instances in disputes concerning domain names.

2021 ◽  
Author(s):  
Mark-Oliver Mackenrodt

Abstract The relationship between competition law and data protection law has been a highly controversial issue following the German Competition Authority’s (Bundeskartellamt, hereinafter ‘Competition Authority’) decision with regard to Facebook’s data processing policy. The Competition Authority’s theory of harm was centered around an exploitative abuse of market power through the imposition of a data processing policy which is in conflict with the data protection rules. In the interim court proceedings, the OLG Düsseldorf criticized the Competition Authority’s decision. The German Federal Supreme Court (Bundesgerichtshof, hereinafter ‘Federal Supreme Court’) upheld the Competition Authority’s decision. However, the Federal Supreme Court did not derive the exploitative abuse primarily from a mere violation of data protection law. Instead, the Court referred to the users’ lack of freedom of choice. The Court developed a modified theory of harm by identifying elements of an exploitative abuse but also of an exclusionary abuse. The Court’s line of argument is more competition-oriented and accounts for the particular economic features of multi-sided markets. In this line of reasoning, an actual violation of the data protection rules is not a necessary prerequisite for finding a violation of competition law.


Author(s):  
Vinicius Gomes De Vasconcellos

Resumo: Este artigo pretende desenvolver uma análise do posicionamento adotado pelo Supremo Tribunal Federal brasileiro em relação ao conceito de “sistema acusatório” no processo penal. Para tanto, empreender-se-á estudo das decisões acerca da temática proferidas pelo referido órgão nos anos de 2010 a 2014. Em seguida, após breve excurso histórico, serão expostos os contornos principais da discussão doutrinária pátria sobre os sistemas processuais, ressaltando o ponto cerne das divergências: a possibilidade de produção de provas por iniciativa do julgador. Assim, a partir de tal arcabouço teórico, serão apontadas questões que carecem de aprofundamento e elucidação pela jurisprudência do tribunal máximo brasileiro.Palavras-chave: Processo Penal; sistema acusatório; Supremo Tribunal Federal.Abstract: This paper aims to develop an analysis of the Brazilian Supreme Court’s position related to the concept of “accusatorial system” in criminal law. In this sense, it will study the decisions of the court involving the topic in the years of 2010 to 2014. Then, after a brief historical excursion, the main lines of the Brazilian doctrinal discussion about procedural systems will be presented, highlighting the core point of disagreement: the possibility of producing evidence by the judge’s initiative. Thus, from such theoretical background, this paper will identify issues that claim a deep and clarified review from the Brazilian Supreme Court’s decisions.Keywords: Criminal Procedure; Accusatorial system; Brazilian Supreme Court.


2020 ◽  
Vol 69 (10) ◽  
pp. 1032-1038
Author(s):  
Andreas Seidel

Abstract The German Federal Supreme Court has once again ruled in the matter of advertisement blockers. It is the Court’s third decision concerning the use of ad blocking services, this time from the perspective of competition law. Of particular importance was the clarification of the market definition and market dominance in a two-sided market, where the substitution possibilities and ad blocker software countermeasures are of greater importance. The Court also developed guidelines for the balancing of interests in the context of the examination of an abusive exploitation of a possibly market dominant position by an ad blocking business model. The resolution of this dispute will provide a benchmark for the assessment of acceptable behaviour of intermediaries under competition law. It will be of considerable importance here that the company behind ‘Adblock Plus’ software is operating on an ‘asymmetrical’ or significantly imbalanced two-sided market. In this market the benefits of the software are almost one-sided on the part of the internet users, but the financing is mainly covered by website operators who themselves experience significant disadvantages from the use of the ad blocker.


2009 ◽  
Vol 160 (9) ◽  
pp. 263-274
Author(s):  
Alois Keel ◽  
Willi Zimmermann

With the entry into force of the new Swiss Federal Law on Forests on the 1st of January 1993, the basis of decision-making for the Federal Supreme Court concerning forestry issues has, at least formally, fundamentally changed. This article depicts the development of the Federal Supreme Court's jurisdiction during 2000–2008 concerning the legislation on forests. The analysis of about 100 decisions reveals that the federal jurisdiction has, with regard to contents, barely changed in comparison to that of the federal law on supervision of the forest police of 1902. The most frequent causes of dispute are assessments of forest status, authorizations for deforestation, and forest distance regulations. The Federal Supreme Court merely refined the jurisdiction; it did not, or did not need to disclose fundamentally new lines [benchmarks]. It rather adheres to the restrictive definition of forest and the strict conservation of forests, while the cantons do not dispose of a large scope for the deforestation jurisdiction or the definition of the term “forest”. The Federal Supreme Court grants the cantons more freedom to regulate and implement the forest distance. Obvious changes can be observed concerning the number of forest law cases that have been dealt with by the Federal Supreme Court. Compared to the 1980ies and early 1990ies, they have decreased by more than half. Among others, reasons for this decrease are the cantons' obligation to appoint courts only as last cantonal resort, the improvement of the formal and material coordination of the proceedings, and the introduction of the “static forest term” with respect to building zones in the sense of the federal law on area planning.


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