Resale Price Maintenance – Exception for short-term promotions?

12 8 月 2018

  • 德国
  • 分销协议

根据欧盟电子商务部门的调查，超过50%的互联网市场和36%的零售商提供数据给价格搜索引擎，如 Idealo，谷歌购物Google Shopping，或Shopzilla。相比之下，大约10%的经销商受到价格比较引擎禁令的影响（见委员会工作人员工作文件SWD（2017）154定稿，S.32图B.4和欧盟委员会第37页，电子商务部门调查的最后报告，第10页）。

不过，联邦法院最近确认，价格比较引擎的禁令是反竞争和无效的。在具体案例中，爱世克斯（跑鞋品牌名）通常禁止德国零售商支持在线分销中的价格搜索引擎：

“此外，经授权的…经销商不得…通过为这些价格比较引擎提供特定于应用程序的接口（“APIs”）来支持价格比较引擎的功能。”

此外，该协议还包含了对第三方平台广告的广泛禁止：爱世克斯禁止其授权经销商允许第三方在第三方网站上以任何形式使用爱世克斯的商标，以便直接引导客户访问被授权的爱世克斯经销商的网站。

爱世克斯的分销协议首先由德国竞争管理机构Bundeskartellamt作为试点案例进行调查(由于许多体育零售商对体育设备制造商的互联网转售限制提出了申诉，因此对阿迪达斯提起了另一起试点案件)。2015年，Bundeskartellamt裁定，爱世克斯对价格比较引擎的禁令违反了反垄断法，因为它将违反第101条(1) TFEU，sec.1 《禁止限制竞争法》。提出的理由是，这种禁令的主要目的是控制和限制价格竞争，而牺牲消费者的利益。这项决定首先得到了Düsseldorf高等地区法院的确认（2017年4月5日的裁决，案件号：VI-Kart 13/15(V)，见Legalmondo文章，点击这里）。

现在，联邦法院再次确认了这项裁决（2017年12月12日的决定，第KVZ 41/17号案件）。爱世克斯的裁决特别值得注意，因为它是德国法院继欧盟法院关于科蒂（全球最大的香水生产公司）的平台禁令作出裁决裁决之后作出的首项裁决（见Legalmondo的文章，点击这里）。因此，这是法院今后将如何处理互联网转售限制的第一个迹象。

因此，联邦法院指出，对价格搜索引擎的普遍禁止“至少”要限制向终端消费者的被动销售（第23款, 25款)–这种限制甚至将是这种禁令的预期目的。法院认为，根据《科蒂判决》（点击此出查看），一般平台禁令的可接受性并不意味着一般价格比较禁令的可接受性（第28款及其后款）。尤其是“限制组合”–即第三方平台价格比较引擎和广告宣传禁令–会产生影响。因为它没有确保潜在客户能够“实际进入”经销商网站（第30款） –在这种情况下，联邦最高法院允许提供这种“实质性准入”所需的充分或必要的条件；在这种情况下，一般价格比较引擎禁令仍可继续得到允许。

实用贴士：

  • 事实上，根据联邦最高法院的判决，Düsseldorf高级地区法院（Asics）和法兰克福高等地区法院（Deuter）已经指出以下区别可能适用于：
  • 一般价格比较引擎禁令是–根据联邦法院–反竞争的，因此通常是无效的–尽管如果不与广泛的广告禁令相结合，这些禁令仍然是允许的，这样就可以保证潜在的客户能够访问经销商网站。
  • 单独的价格比较引擎禁令和使用价格比较门户网站的其他较温和的限制/标准是允许的，例如关于产品插画或说明以及产品环境（例如要求经销商只能提供新产品）。

进一步了解细节: Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchmaschinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 118 ff.

  • 除此之外，制造商可以–在排他性分销网络内–禁止其分销商主动向制造商保留的或由制造商分配给另一分销商的客户提供在线广告，并指明所使用的语言。原则上，所有其他可能的质量标准也是允许的，只要他们和线下分销标准等效（因为“委员会认为，规定网上销售的标准与从实体店销售的标准总体上不等于硬核限制，从而劝阻指定经销商使用互联网接触更多和更多样化的客户的任何义务”，《纵向限制准则》，第56条）。

有关更多信息，请参见：

  • 有关实践现状的概述，包括示范合约条款：Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisübersichts und Folgen des “Coty”-Urteils des EuGH, in: GRUR-Prax 2018, 39-41 以及
  • 特别是关于平台禁令和可能起草分配协议: Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattformverboten nach dem EuGH-Urteil Coty – Auswirkungen auf Fachhändler- bzw. Selektiv-, Exklusiv-, Franchise- und offene Vertriebsverträge –, in: DB 2018. 300-306.
  • 关于在互联网销售平台中嵌入的搜索功能中是否允许使用商标和公司徽标，见联邦法院最近于2018年2月15日发布的两项裁决（案件号：I ZR 138/16 re “Ortlieb” 和案件号 I ZR 201/1 re “gofit“).

Agreements restricting competition are prohibited as anticompetitive agreements by Article 101 TFEU unless the agreement’s impact on trade or competition is not appreciable (cf. the EU Court of Justice in the Expedia case, C-226/11, judgment of 13 December 2012). Whether an agreement constitutes an appreciable restriction of competition or is in the “safe harbour” can be assessed according to the European Commission’s De Minimis Notice. Accordingly, an agreement is particularly appreciable if its object is to restrict competition. This applies in particular to so-called hardcore restrictions, such as vertical price maintenance (or resale price maintenance = “RPM”).

Regarding a special offer for dietary products, the German Higher Regional Court of Celle surprisingly took a different view and decided that even resale price maintenance could be considered non-appreciable and thus falling outside the ban of anticompetitive business practices under Article 101 TFEU (judgment of 07.04.2016, Case 13 U 124/15 [Kart]). In this case, the manufacturer made a special offer to a group of its customers (pharmacies) with a special purchase discount: once, for a limited period and limited to a maximum quantity. In return, the customers should commit themselves to “present the product clearly… and not fall below a resale price of EUR 15.95“.

The Hanover Regional Court had instead seen the agreement as an unlawful resale price maintenance (judgment of 25 August 2015, Case 18 O 91/15) – and now the German Federal Court confirmed the same: the minimum prices specified here within the advertising campaign appreciably restrict competition and are thus banned as anticompetitive business practice under Article 101 TFEU (judgment of 17 October 2017, Case KZR 59/16). This corresponds to the case law of the EU Court of Justice in the Expedia case (see above) and the German Federal Court with regard to the sales requirement “one bar extra “ (i.e. without extra charge compared to the usual package size) of the Italian confectionery manufacturer Ferrero (judgment of 08.04.2003, Case KZR 3/02) – because the latter explicitly concerns “the scope for price increases resulting from the increased contents of the package” – not, however, the retailer’s decision to set prices freely downwards.

Practical tips

Vertical price fixing is generally prohibited, whereas providing a manufacturer’s suggested retail price (MSRP, also “recommended retail price”) and maximum selling prices are allowed – this is briefly the principle of German and European antitrust law on pricing frameworks. Furthermore, recommended retail prices and maximum selling prices (“MSP”) are subject to the restriction that they ” they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties” (Article 4 lit. a Vertical Block Exemptions Regulation). That means:

  • the manufacturer or supplier may provide guidance,
  • however, the reseller may set his sales prices freely.

Exceptions may apply – in addition to the RPM on the price of books or in the case of specialisation agreements – by way of the efficiency defence under Article 101 (3) TFEU in individual cases, e.g.

  • in the introductory period when launching new products on the market, or
  • in the case of short-term special offers if accompanied by a corresponding increase in efficiency, for example by investing the higher margin into better customer advice, which benefits all customers and Resale Price Maintenance prevents retailers who do not offer the customer advice from free riding (cf. EU Guidelines on Vertical Restraints, para. 225).

Such actions, however, require excellent preparation because manufacturers can only set resale prices for very short periods if they can convincingly demonstrate efficiency gains such as preventing free-riders.

In the case of fixed prices, the competition authorities quickly become sensitive. For example, fines for vertical price maintenance have recently been imposed again in Germany. In this respect, special care must be taken particularly in distribution and sales agreements.

  1. Correspondingly, each company’s sales team should continue following the previous case law on recommended retail prices, maximum selling prices and discount campaigns. Guidance for the practice is provided by

There is no single piece of legislation setting out all the duties and obligations to which managing GmbH directors (“Geschaeftsfuehrer”) are subject. These duties are set out i.a. in the law on GmbHs (“GmbHG”), the Commercial Code (“HGB”), Insolvency Act (“InsO”), Civil Code (BGB), the Antitrust Law (GWB), environmental and tax laws. Furthermore, they are set out in the Articles of Association of the GmbH (“Gesellschaftsvertrag”), Shareholders’ resolutions, Internal rules for management and if applicable the Service agreements of the GmbH and the directors.

Directors will normally not be held accountable for acts and debts of the GmbH, for GmbHs are separate independent entities accountable in their own right. Directors will be held accountable for their own behaviour, however, and be required to pay money out of their own pockets by way of compensation for breach of duty or as a fine. They may be disqualified from holding office as director, or even imprisoned.

General Obligation of Diligent Management in Relation to the GmbH

Directors have a general obligation of diligent management, including in particular:

  • to use his / her best efforts to promote the purpose of the GmbH;
  • to control the company’s liquidity and financial position;
  • ensure the GmbH’s compliance with all applicable legal obligations;
  • not to compete with, or appropriate the business opportunities of the GmbH;
  • not to disclose confidential information belonging to the GmbH.

Directors must employ the diligence of an orderly businessperson. Pursuant to the “business judgment rule” the management is immunized from liability if and to the extent the management, making an entrepreneurial decision based on appropriate information, could reasonably assume to act in the best interest of the company.

Annual accounts

GmbH directors must ensure that the company keeps proper books and accounts showing clearly the financial position of the company. Failure to fulfil this obligation can lead to a fine or even a term of imprisonment of the director.

Contribution and Preservation of Share Capital

The GmbH must have a share capital of at least 25,000 EUR. Upon the formation of a GmbH or increase of its share capital, the director(s) must affirm to the commercial register that the subscriber(s) of the (increased) share capital paid in the amount of cash determined in the Articles of Association, i.e. that the full amounts due were fully paid in, not paid back and are entirely to the free disposition of the director(s). If incorrect statements were made, directors are liable to the company.

Section 30 para 1 GmbHG prohibits disbursing assets to shareholders without an adequate consideration, so-called unlawful repayments. For their determination, a “balance-sheet test” is decisive. This means, a payment is not unlawful, when:

  • the company’s counter-performance or restitution claim is fully-fledged and
  • the contract meets the cover imperative (payment of the market price).

If an unlawful repayment of share capital contributions has occurred, the other shareholders are proportionately liable for the refund owed to the company. The directors whose negligent or intentional acts caused the illegal repayment are in their turn liable to those shareholders required to refund the sum.

Duties in Relation to Shareholders

Each director is entitled to call shareholders’ meetings. Those are to be called – inter alia – if this appears to be required by the interest of the company.

Under German GmbH law, GmbH shareholders are entitled to instruct the director(s) of the company in detail through shareholders resolutions to act or not to act in a certain way. Directors must comply with those instructions unless they are illegal. A negligent or intentional violation of this obligation renders the directors liable to the GmbH for damages and may justify their dismissal for cause.

Obligations Arising From Insolvency, Over-Indebtedness and Loss

Insolvency and Over-Indebtedness

In case of over-indebtedness or insolvency, each director must file a petition for the institution of an insolvency petition without undue delay but no later than three weeks from the date on which the over-indebtedness was ascertained or the insolvency arose (Section 15a Insolvency Code). Directors negligently or intentionally failing to meet this obligation (in time or properly) commit a criminal offence punishable by up to 3 years imprisonment and are liable for damages to the company.

Loss

If a balance sheet of the company shows a loss of one half or more of its share capital, the directors must call a shareholder meeting without undue delay. Directors failing to do so are liable to the company and subject to criminal penalties.

Duties in Relation to Taxes and Social Insurance Contributions

Apart from the obligation to file tax returns and pay corporate, trade and sales tax, the company must withhold some taxes (income tax, capital gains/settlement tax). The tax laws impose on directors a direct responsibility for tax payments. In case of violation by intention or gross negligence, they are liable personally (Section 69 German Fiscal Code) and subject to administrative sanctions or criminal penalties. Similar obligations apply to statutory social insurance contributions.

Duties in Relation to Employees and the Environment

Directors must observe special laws for the protection of employees (ArbSchG) and environment (USchG). If failing to do so, directors are personally responsible.

Duties in Relation to Third Parties

Directors’ Liability for an Appropriate Organisation of the Company

Directors have the duty and responsibility to organise the company such that the life, health, property, and similar rights of third parties are not violated.

Directors’ Liability for their Company’s Contracts, and its Acts or Omissions

Such a liability arises e.g., if a director agrees to personally guarantee a contract and the company fails to perform. A director may also be personally liable for torts (i.e. civil wrongs, incl. negligence) authorised by him/her, committed by the GmbH.

Antitrust Issues

A company and its directors commit an administrative offence, punishable by up to 1,000,000 EUR, if they violate Art. 101 s. EC Treaty or provisions of the GWB. This encompasses e.g. agreements, having as effect the restriction of competition.

Disqualification as a Director

A GmbH director will be disqualified from the position as director if he/she is convicted for the commission of particular criminal offences like fraudulent bankruptcy, violation of the duty to keep books or delaying insolvency proceedings.

“日默瓦（行李箱品牌名）所有者终止了在欧洲的所有分销协议”——2018年3月9日，德国主要商业报纸“Handelsblatt”的标题。终止原因是：日默瓦——著名高质量的行李箱品牌制造商——其在2011年后，于2018年重新设计它的分销网络：日默瓦的目标是再次提高其质量选择标准，不再将其产品卖给传统的商店，而是提供现代的购物体验。

原则上，制造商可以根据其营销战略和任何变化的需求自由设计和开发其分销系统。相似地，他们可以在原则上自由选择销售中间商（分销商/经销商、特许经营者、代理人等）的数量和名称。他们原则上也可以自由转向选择性分销，目的是使其产品的分销符合某些标准（特别是关于分销的质量），从而也有可能减少分销商的数量。然而，作为例外，分销商可能强迫制造商提供这些产品——即制造商有很大的市场支配力。在这种情况下，与分销商订立合同从而产生交货义务的义务可能源自禁止歧视的规定。（德国《反竞争限制法》第1、20条，1、2款，19项）。

如果制造商重新设计他们的分销网络——就像日默瓦以前和现在所做的那样，那么这个问题就变得特别相关，日默瓦在2011/2012年转向选择性分销（关于选择性分销的优点和可能的分销限制，见Legalmondo文章）。为了重新设计其分销网络，日默瓦终止了以前的分销协议，并提出缔结新的分销协议——根据新的协议，新的分销商承诺以某种方式展示货物，并购买和使用日默瓦的店内系统。日默瓦认为，原分销商的表现与新的商业理念和销售策略不符，这就是双方未能达成缔结一份新协议的原因。于是，分销商提出诉讼，目的是订立一份新的经销商合同，从而交付他的经销商店。

慕尼黑地区法院驳回了这项诉讼请求(2014年9月9日的裁决，编号7249/13 HKO)。不过，慕尼黑高等地区法院确认了这种索赔(2015年9月17日的裁定，注释第U 3886/1/4 Kart)——主张制造商在有关的“高价和高质量手提箱市场”中处于领导地位，或者，相反地，如果分销商具有依赖性，并且因为制造商的手提箱不能被其他同等的手提箱所取代。这种依赖性尤其通过高分销率表现（即制造商提供了大量可比较的分销商）以及独特的设计和相关的高认可价值。现在，联邦法院推翻了这一判决，并将其发回重审(2017年12月12日的裁决，编号：KZR 50/15)。原因：分销商对制造商的产品分类依赖（“Spitzenstellungsabhängigkeit”作为“Sortimentsbedingte Abhängigkeit”的特例）没有得到充分的证明。尽管高分销率通常是决定性的，但在目前这样的质量选择性分销制度中，其意义可能不大。重新设计分销系统的决定性因素：“如果供应商选择在某个时间点转换到一个高质量的选择性分销系统，在之前的一段时间里，与品种相关的依赖关系通常会以较高的分销率来表示。”（第19款）

制造商尤其可以提出两个论点，反对这种所谓的分类相关依赖关系，即

(一)由制造商自行供应其产品的分销商数目远低于提供其产品的分销商总数（即包括通过其他渠道购买该产品的分销商）；及

(二) 分销率将根据那些可与要求进入分配系统和交付的分销商相媲美的分销商确定（第27款)–正如德国联邦法院先前在裁定室内装潢案例（2000年5月9日的裁定，参考KZR 28/98，p. 12）。

Practical conclusions

实际结论

“没有什么比改变更永恒”：在重新设计分销系统时，要仔细考虑是否想要/需要过渡安排–或者最好不考虑过渡安排。一个很好的不考虑过渡安排的理由是：它们可能会使排除不想要的分销商变得更加困难。因此，在日默瓦一案中，慕尼黑的较高地区法院驳回了制造商的反驳意见，即分销商的商业模式“以讨价还价为目标”–辩称，制造商给其他分销商“订立协议后12个月”的时间来满足新的定性标准。

有关定性标准（也是要求/规格），请参阅Legalmondo上的其他文章，特别是关于平台禁令和价格比较禁令的文章，请参见Legalmondo上的文章。

It is not only since the days of the Internet that brand manufacturers have had to contend with the fact that original products are offered outside of their authorized sales channels. The problem has since been significantly exacerbated, however. The relevant products are also referred to as gray market products.

The internal market of the European Economic Area makes it possible to exploit certain price advantages – that is, purchasing in one Member State at a price that is lower than in other Member States and selling to the end customer while passing on (or not passing on) the purchasing advantage. This is made possible by the “exhaustion regime”, according to which the sale of products, which at one time were made available in the European Economic Area with the copyright holder’s consent, cannot be prohibited.

Brand manufacturers’ attempts to counter this issue by means of distribution systems may be an effective instrument, but only if all distribution partners adhere to it. If a distribution partner pulls out, trademark owners (at least in Germany) are initially required to contact their distribution partner who is acting contrary to the contract. That is difficult when the distribution channel of the products in question cannot be traced by security systems (such as SKU numbers) beyond any doubt. A right to information against a third party generally does not exist. Thus, neither the distribution system itself nor the suspicion that the products are not of EU origin may be used easily to justify a right to information in selective or exclusive distribution. The Federal Court of Justice, for example, sees no reason to deviate from the exhaustion doctrine when implementing a selective distribution system (Federal Court of Justice, 1 ZR 63/04). In the case of a selective or exclusive distribution system (Federal Court of Justice, I AR 52/10), the burden of proof is reversed. Accordingly, it is initially the brand manufacturer itself that is responsible for providing evidence for its allegation of a non-EU product.

Exceptions are only made where, for example, the SKU numbers were modified, since this makes clarification difficult. In such cases, trademark infringement and at the same time breach of competition law are given by way of exception and it is not possible for the dealer to invoke exhaustion (Federal Court of Justice I ZR 1/98). The deliberate misleading of the authorized dealer by a third party to breach the contract is also recognized as an exception (Federal Court of Justice I ZR 96/04), which regularly is not verifiable, however.

By the way, the sensational December 2017 Coty decision of the Court of Justice of the European Union (CJEU C-230/16) (here you can find more: https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/) has not changed this basic presumption, either. In its Coty decision, the CJEU in the end confirms the exhaustion priority also and particularly for luxury products by referring to existing case law (specifically ECJ C-59/08).

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There are, however, more options available. As confirmed by the ECJ (ECJ, C-337/95), an exemption from the exhaustion principle already applies when the type of sale may be designed to damage the reputation of the trademark. In the Court’s opinion, this applies to the sale of products at discounters, if such a sale damages the reputation of the products to an extent that their luxurious image and quality is called into question (ECJ, C-59/08). This applies, on the one hand, if other products are sold in the immediate “neighborhood” to the branded product, without meeting the same quality requirements (ECJ, C-337/95) or if the advertising methods are unsuitable (ECJ, C-63/97). Hamburg Regional Court, for example, found that the use of photographs that are unsuitable and detrimental to the luxury image of a brand justifies a prohibition claim (at least with respect to use of the photos) (Hamburg Regional Court, 315 O 339/13). The Federal Court of Justice saw improper handling of the brand in an erroneous and negligent labeling of products (Federal Court of Justice, I ZR 72/11).

Düsseldorf Higher Regional Court has now also followed these CJEU guidelines by prohibiting the sale of high-priced cosmetic products, which are distributed in the framework of a strictly regulated selective distribution system, at a discounter (Düsseldorf Higher Regional Court, I-20 U 113/17). The Court explicitly referenced the CJEU, by repeating its principles and then applying them in the case of the discounter:

“The permanent and extensive sale of the cosmetic products at issue on the online platform www…de is suitable to significantly impair the image of the application brands. The way in which the products are presented there draws the application brands into the mundane and ordinary. As the relevant public is used to from the multitude of Respondent’s conventional self-service department stores, the offering on www…de of everyday products is frequently dominated in the form of particularly low priced own labels, such as Z.’s own label “O.” Respondent’s motto applies here as well. The assortment ranges from food to electronics, household goods, clothing to cosmetics. Since Respondent’s online presence was merged with that of the company “B” that it had acquired, it is moreover not only Respondent that offers its goods for sale on the platform, but also third parties may market goods via the online platform. The portal is designed to be functional and oriented toward products that are on sale. Customers are able to collect PAYBACK points with each purchase and may make use of financing. In some cases, goods are advertised at “instead of prices” and red letters indicate in attention-getting manner what percentage customers will save compared to the original prices. Product consultation does not take place.”

By offering luxury products at random alongside every-day and mass products without any kind of prominent presentation and becoming affordable through financing options, the products would be placed on a level with the other items offered, thereby significantly affecting the prestige value of the products. For this reason, Düsseldorf Higher Regional Court pronounced a complete ban on distribution for the online platform and the department stores.

Conclusion:

Even if the Düsseldorf Higher Regional Court’s decision is not to be considered revolutionary in light of existing CJEU case law, it certainly ensures some impetus in proceeding against gray market dealers, since national courts are now no longer facing the “uncomfortable” hurdle of applying CJEU case law, but rather in the customary fairway of national case law. In principle, Düsseldorf Higher Regional Court case law may not be understood as a blank check, however. Even Düsseldorf Higher Regional Court did not allow a general ban, but rather weighed individually whether the distribution in its concrete form could be prohibited. In the future, it will also be important to work out what in particular will determine the extent of the ban.

The author of this post is Ilja Czernik.

公司可以通过分公司、子公司或电子商务–或间接–通过代理商、分销商、特许经营商或佣金代理商在全球直接销售他们的产品。

德国联邦法院现在首次裁定，佣金代理商也可在合同终止时要求赔偿(2016年7月21日的决定，参考第I ZR 229/15号)。

什么是佣金代理商？

佣金代理商是自营商他们经常受委托以自己的名义为另一家公司（即供应商）的帐户订立交易的任务。它们不同于分销商，因为分销商自己买卖产品，因此本身就承担分销风险（详见Legalmondo中关于德国分销协议的文章和关于“德国”分销商赔款–如何避免的文章）。

针对佣金代理商的新规定是什么？

联邦法院明确–按照为分销商解决问题的判例法–如果符合两个类比要求，也就是如果佣金代理商符合下列条件，则可在合同终止时要求赔偿。

（一）作为商业代理被纳入供应商的销售组织；以及

（二）必须向供应商提供客户数据，使供应商在合约终止后，能够继续从与这些客户的业务中获得实质利益。

关于第二项要求(提供客户数据)，联邦法院指出先决条件是–作为一般规则-符合，因为成文法规定佣金代理商必须提供客户数据(sec.384 para.2 德国商法典）。因此，没有任何具体的合同义务，客户根据法律“属于”供应商。

如果分销涉及“匿名大众业务”（即客户支付现金，销售中介由于客户关系管理措施而不知道客户名称），佣金代理商可能无法提供相应的客户数据。在这种情况下，根据联邦法院，如果佣金代理商提供了“有关销售过程本身”的数据，则应足以使供应商能够估计哪些类型的货物有需求（这与汽车、时装或电子产品等高质量产品的分销要求大不相同）。

双方的义务可以让第三方承办吗？

是的，提供客户数据的义务可以让第三方承办。然而，这种做法目前不会100%安全地将索赔请求排除在外，因为联邦法院没有明确规定，如果供应商仅有实际机会使用客户数据，佣金代理商是否也可以要求赔偿。因此，为了安全起见，还必须排除使用数据的机会（见下面的“实用信息”）。

特许经营商呢？

关于特许经营商作为销售中介人的问题，联邦法院确认，仅仅是顾客的事实连续性不足以导致赔偿要求(从而确认了反对2015年2月5日，对传统烘焙连锁“Kamps”的特许经营人所作的决定。第VII ZR 315/13号）。

实用贴士

保护自营商业代理人的条款也可同样适用于佣金代理商。

关于根据德国法律订立的现存协议：如果符合两项类似要求，终止时的赔偿要求很有可能得到满足。

关于根据德国法律订立的将来的协议，则如下：

  • 一般来说，通过排除佣金代理商提供客户数据的义务，可以避免赔偿要求。但是，应该明确地规定这种排除。或者，为了保险起见，除此之外，供应商可以强制自己在与佣金代理商的合同终止时锁定或删除客户数据。
  • 或者，可以通过选择另外的法律和管辖权来避免赔偿权（考虑到“德国”赔偿要求仍可作为《罗马第一条例》第9条意义上的压倒一切的约束性条款而适用的风险）。
  • 最后，如果佣金代理商在欧洲经济区以外行事，则可通过简单的弃权证书排除赔偿要求（根据类似的申请《德国商法典》92c)。

10 practical aspects to consider for an adequate timing

Meanwhile similar legal standards apply in most industrialized countries if an employment relationship shall be terminated; however, in every jurisdiction some specifics still need to be considered. The following ten aspects may be a first general guideline for the termination of an employment contract in Germany, in particular regarding its timing.

  1. In some cases notice needs to be given within a two-week period

In case of gross misconduct an employer may be entitled to terminate an employment relationship forthwith. However, if notice of termination is not served to the employee within two weeks after acknowledgement of the respective facts, this right is forfeited.

  1. Notice has to be given in writing

The notice has to be signed by the legal representative of the employer and delivered to the employee. Neither a transmission by facsimile nor an email with a scanned copy is sufficient. If the representative is not on site, timing may become an essential aspect of the termination process.

  1. Ordinary dismissal may be prohibited by a collective bargaining agreement

Collective bargaining agreements often provide a ban on ordinary dismissal under certain circumstances (e.g. based on the age of the employee). A careful assessment of all applicable collective bargaining agreements before a termination is therefore indispensable.

  1. Insufficient information of the works councils may lead to an invalid termination

The establishment of a works council is not mandatory in Germany. However, if it is established, it needs to be notified and heard before every termination of an employment contract. The notification must contain a sufficient description of the grounds for the termination, otherwise the termination may be deemed invalid. Having been notified, the works council has one week (in some cases: three days) to object. Any termination before such term without consent of the works council would be deemed invalid as well. Timing may therefore become again an essential aspect of the termination process.

  1. General dismissal protection is related to seniority and size of the establishment

General dismissal protection is basically applicable in establishments with more than 10 employees. Exceptions may apply in favour of those employees whose employment relationships commenced already before 1st January 2004. In addition, the respective employee needs to have at least a seniority of six month. If these criteria are met, the termination has to be justified by operational reasons, misconduct or personal incapacity as set out in the Dismissal Protection Act.

  1. Some terminations may need prior permission

Irrespective of the application of the afore mentioned Dismissal Protection Act some kind of terminations (e.g. employees on parental leave) may need a special permission of the works council, the Labour Court or the respective public authority as applicable. These procedures may last from some days up to two years.

  1. There is no general claim for severance payment in case of an unfair dismissal

Aside from those agreed in termination agreements there is no general claim for severance payment in case of an unfair dismissal. In general, the statutory remedy will only be reinstatement and back pay. Only under certain circumstances each party may apply for the termination of the employment relationship and a severance payment in front of the Labour Court. However, in most of the cases parties end up in a voluntary termination agreement.

  1. Non-competes may lead to extensive payments and cannot be withdrawn forthwith unilaterally without cause

A binding covenant to non-compete leads to a compensation payment of at least 50 % of the former salary for every month of its duration. Even in case of a justified termination it may only be terminated with a notice period of one year. However, both parties may agree upon its immediate suspension in a termination agreement.

  1. Any termination agreement has to be in written form as well

Also a termination agreement needs to fulfil the same formal requirements as set out already above under point 2. Again, if the representative is not on site, timing may become an essential aspect of the bargaining process.

  1. The forfeiture clause of a termination agreement may not cover all claims 

Termination agreements often contain general forfeiture clauses at their end, covering also those potential claims which have not been explicitly mentioned or identified by the parties. However, some claims (e.g. pension claims) may not be covered by such a (general) forfeiture clause.

Please note that these ten aspects contain general information only. Further details as well as possible exceptions therefore need to be checked on a case-by-case basis by a professional advisor.

 

Tha author of this post is Alexander Lentz

Talking to clients five years ago the trend was clear, application was to be filed for the EU Trademark only, as it was faster, broader, in relation to the geographical scope cheaper and easier to handle. However as we experience now the EU trade mark has some downsides for which reason it is advisable to apply for a national trademark alongside the EU trade mark. And these are the reasons why:

Genuine Use

One of the main risks with trade marks is the fact that they must be used five years after registration. That use however must be genuine. According to the ECJ (C 149/11) “there is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether there is real commercial exploitation of the mark in the course of trade, particularly the usages regarded as warranted in the economic sector concerned as a means of maintaining or creating market share for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark.“

The problem which occurs from time to time is whether a trade mark used only in one member state or in a specific part of that member state is to be regarded as genuine use in the meaning of these ECJ findings. Whilst the ECJ (C 149/11) has not denied genuine use because of a territorial restricted use within one member state per se it still has not excluded that possibility and what is more has even given the national courts the decision making authority to assess “whether the mark in question is used in accordance with its essential function and for the purpose of creating or maintaining market share for the goods or services protected.“ Consequently a French court could decide that a use of a mark in Germany is insufficient for upholding a EU trade mark and thereby decide that the mark has to be deregistered. This reason alone provides for the necessity to have a national trade mark as plan B.

Counterclaim

When the plaintiff’s trade mark is a German trade mark, there is no possibility for the defendant to raise a counterclaim calling for a revocation of that plaintiff’s trade mark. The defendant has to file for an additional cancellation order before the German Patent and Trademark office. That additional cancellation proceeding however in general does not even bar the violation proceedings. So these will often be decided long before the cancellation proceedings in the last instance.

That is different when it comes to the EU trade mark. The EU trade mark can be declared void during (!) the violation proceedings by filing a counterclaim. Alternatively, the EU trade mark court hearing a counterclaim for revocation or for a declaration of invalidity may stay the proceedings on application by the proprietor of the EU trade mark and after hearing the other parties and may request the defendant to submit an application for revocation or for a declaration of invalidity to the Office. With the consequences that the violation proceeding is dead for ten years which it takes to pursue the cancellation proceedings through all instances.

Place of jurisdiction

The place of jurisdiction of a EU trade mark is limited to the place where the event which gave rise to the harm occurred (“Handlungsort”). The German trade mark however also provides for the place where the harm arose (‘Erfolgsort’) as place of jurisdiction. That however gives the plaintiff much more possibility to forum shop.

Statute of limitation

The EU trade mark does not provide a uniform statute of limitation. The ECJ (C 479/12) has decided that claims for injunctive reliefs become time-bared under the regulations of the national law. However in some case it can be very unclear which national law applies and therefore the same case can be seen differently in the different countries. When the plaintiff’s trade mark is a national trade mark the scope of application of the national statutes of limitation is clear and there are no further insecurities which are never to relish when have court proceedings.

The author of this post is Ilja Czernik.

Benedikt Rohrssen

Practice areas

  • 代理中介
  • 分销协议
  • 电子商务
  • 特许经营
  • 投资
Contact Benedikt

写信给 德国–禁止第三方平台上的价格比较引擎和广告





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    Germany – Duties of the GmbH Managing Directors

    24 7 月 2018

    • 德国
    • 公司法

    根据欧盟电子商务部门的调查，超过50%的互联网市场和36%的零售商提供数据给价格搜索引擎，如 Idealo，谷歌购物Google Shopping，或Shopzilla。相比之下，大约10%的经销商受到价格比较引擎禁令的影响（见委员会工作人员工作文件SWD（2017）154定稿，S.32图B.4和欧盟委员会第37页，电子商务部门调查的最后报告，第10页）。

    不过，联邦法院最近确认，价格比较引擎的禁令是反竞争和无效的。在具体案例中，爱世克斯（跑鞋品牌名）通常禁止德国零售商支持在线分销中的价格搜索引擎：

    “此外，经授权的…经销商不得…通过为这些价格比较引擎提供特定于应用程序的接口（“APIs”）来支持价格比较引擎的功能。”

    此外，该协议还包含了对第三方平台广告的广泛禁止：爱世克斯禁止其授权经销商允许第三方在第三方网站上以任何形式使用爱世克斯的商标，以便直接引导客户访问被授权的爱世克斯经销商的网站。

    爱世克斯的分销协议首先由德国竞争管理机构Bundeskartellamt作为试点案例进行调查(由于许多体育零售商对体育设备制造商的互联网转售限制提出了申诉，因此对阿迪达斯提起了另一起试点案件)。2015年，Bundeskartellamt裁定，爱世克斯对价格比较引擎的禁令违反了反垄断法，因为它将违反第101条(1) TFEU，sec.1 《禁止限制竞争法》。提出的理由是，这种禁令的主要目的是控制和限制价格竞争，而牺牲消费者的利益。这项决定首先得到了Düsseldorf高等地区法院的确认（2017年4月5日的裁决，案件号：VI-Kart 13/15(V)，见Legalmondo文章，点击这里）。

    现在，联邦法院再次确认了这项裁决（2017年12月12日的决定，第KVZ 41/17号案件）。爱世克斯的裁决特别值得注意，因为它是德国法院继欧盟法院关于科蒂（全球最大的香水生产公司）的平台禁令作出裁决裁决之后作出的首项裁决（见Legalmondo的文章，点击这里）。因此，这是法院今后将如何处理互联网转售限制的第一个迹象。

    因此，联邦法院指出，对价格搜索引擎的普遍禁止“至少”要限制向终端消费者的被动销售（第23款, 25款)–这种限制甚至将是这种禁令的预期目的。法院认为，根据《科蒂判决》（点击此出查看），一般平台禁令的可接受性并不意味着一般价格比较禁令的可接受性（第28款及其后款）。尤其是“限制组合”–即第三方平台价格比较引擎和广告宣传禁令–会产生影响。因为它没有确保潜在客户能够“实际进入”经销商网站（第30款） –在这种情况下，联邦最高法院允许提供这种“实质性准入”所需的充分或必要的条件；在这种情况下，一般价格比较引擎禁令仍可继续得到允许。

    实用贴士：

    • 事实上，根据联邦最高法院的判决，Düsseldorf高级地区法院（Asics）和法兰克福高等地区法院（Deuter）已经指出以下区别可能适用于：
    • 一般价格比较引擎禁令是–根据联邦法院–反竞争的，因此通常是无效的–尽管如果不与广泛的广告禁令相结合，这些禁令仍然是允许的，这样就可以保证潜在的客户能够访问经销商网站。
    • 单独的价格比较引擎禁令和使用价格比较门户网站的其他较温和的限制/标准是允许的，例如关于产品插画或说明以及产品环境（例如要求经销商只能提供新产品）。

    进一步了解细节: Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchmaschinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 118 ff.

    • 除此之外，制造商可以–在排他性分销网络内–禁止其分销商主动向制造商保留的或由制造商分配给另一分销商的客户提供在线广告，并指明所使用的语言。原则上，所有其他可能的质量标准也是允许的，只要他们和线下分销标准等效（因为“委员会认为，规定网上销售的标准与从实体店销售的标准总体上不等于硬核限制，从而劝阻指定经销商使用互联网接触更多和更多样化的客户的任何义务”，《纵向限制准则》，第56条）。

    有关更多信息，请参见：

    • 有关实践现状的概述，包括示范合约条款：Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisübersichts und Folgen des “Coty”-Urteils des EuGH, in: GRUR-Prax 2018, 39-41 以及
    • 特别是关于平台禁令和可能起草分配协议: Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattformverboten nach dem EuGH-Urteil Coty – Auswirkungen auf Fachhändler- bzw. Selektiv-, Exklusiv-, Franchise- und offene Vertriebsverträge –, in: DB 2018. 300-306.
    • 关于在互联网销售平台中嵌入的搜索功能中是否允许使用商标和公司徽标，见联邦法院最近于2018年2月15日发布的两项裁决（案件号：I ZR 138/16 re “Ortlieb” 和案件号 I ZR 201/1 re “gofit“).

    Agreements restricting competition are prohibited as anticompetitive agreements by Article 101 TFEU unless the agreement’s impact on trade or competition is not appreciable (cf. the EU Court of Justice in the Expedia case, C-226/11, judgment of 13 December 2012). Whether an agreement constitutes an appreciable restriction of competition or is in the “safe harbour” can be assessed according to the European Commission’s De Minimis Notice. Accordingly, an agreement is particularly appreciable if its object is to restrict competition. This applies in particular to so-called hardcore restrictions, such as vertical price maintenance (or resale price maintenance = “RPM”).

    Regarding a special offer for dietary products, the German Higher Regional Court of Celle surprisingly took a different view and decided that even resale price maintenance could be considered non-appreciable and thus falling outside the ban of anticompetitive business practices under Article 101 TFEU (judgment of 07.04.2016, Case 13 U 124/15 [Kart]). In this case, the manufacturer made a special offer to a group of its customers (pharmacies) with a special purchase discount: once, for a limited period and limited to a maximum quantity. In return, the customers should commit themselves to “present the product clearly… and not fall below a resale price of EUR 15.95“.

    The Hanover Regional Court had instead seen the agreement as an unlawful resale price maintenance (judgment of 25 August 2015, Case 18 O 91/15) – and now the German Federal Court confirmed the same: the minimum prices specified here within the advertising campaign appreciably restrict competition and are thus banned as anticompetitive business practice under Article 101 TFEU (judgment of 17 October 2017, Case KZR 59/16). This corresponds to the case law of the EU Court of Justice in the Expedia case (see above) and the German Federal Court with regard to the sales requirement “one bar extra “ (i.e. without extra charge compared to the usual package size) of the Italian confectionery manufacturer Ferrero (judgment of 08.04.2003, Case KZR 3/02) – because the latter explicitly concerns “the scope for price increases resulting from the increased contents of the package” – not, however, the retailer’s decision to set prices freely downwards.

    Practical tips

    Vertical price fixing is generally prohibited, whereas providing a manufacturer’s suggested retail price (MSRP, also “recommended retail price”) and maximum selling prices are allowed – this is briefly the principle of German and European antitrust law on pricing frameworks. Furthermore, recommended retail prices and maximum selling prices (“MSP”) are subject to the restriction that they ” they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties” (Article 4 lit. a Vertical Block Exemptions Regulation). That means:

    • the manufacturer or supplier may provide guidance,
    • however, the reseller may set his sales prices freely.

    Exceptions may apply – in addition to the RPM on the price of books or in the case of specialisation agreements – by way of the efficiency defence under Article 101 (3) TFEU in individual cases, e.g.

    • in the introductory period when launching new products on the market, or
    • in the case of short-term special offers if accompanied by a corresponding increase in efficiency, for example by investing the higher margin into better customer advice, which benefits all customers and Resale Price Maintenance prevents retailers who do not offer the customer advice from free riding (cf. EU Guidelines on Vertical Restraints, para. 225).

    Such actions, however, require excellent preparation because manufacturers can only set resale prices for very short periods if they can convincingly demonstrate efficiency gains such as preventing free-riders.

    In the case of fixed prices, the competition authorities quickly become sensitive. For example, fines for vertical price maintenance have recently been imposed again in Germany. In this respect, special care must be taken particularly in distribution and sales agreements.

    1. Correspondingly, each company’s sales team should continue following the previous case law on recommended retail prices, maximum selling prices and discount campaigns. Guidance for the practice is provided by

    There is no single piece of legislation setting out all the duties and obligations to which managing GmbH directors (“Geschaeftsfuehrer”) are subject. These duties are set out i.a. in the law on GmbHs (“GmbHG”), the Commercial Code (“HGB”), Insolvency Act (“InsO”), Civil Code (BGB), the Antitrust Law (GWB), environmental and tax laws. Furthermore, they are set out in the Articles of Association of the GmbH (“Gesellschaftsvertrag”), Shareholders’ resolutions, Internal rules for management and if applicable the Service agreements of the GmbH and the directors.

    Directors will normally not be held accountable for acts and debts of the GmbH, for GmbHs are separate independent entities accountable in their own right. Directors will be held accountable for their own behaviour, however, and be required to pay money out of their own pockets by way of compensation for breach of duty or as a fine. They may be disqualified from holding office as director, or even imprisoned.

    General Obligation of Diligent Management in Relation to the GmbH

    Directors have a general obligation of diligent management, including in particular:

    • to use his / her best efforts to promote the purpose of the GmbH;
    • to control the company’s liquidity and financial position;
    • ensure the GmbH’s compliance with all applicable legal obligations;
    • not to compete with, or appropriate the business opportunities of the GmbH;
    • not to disclose confidential information belonging to the GmbH.

    Directors must employ the diligence of an orderly businessperson. Pursuant to the “business judgment rule” the management is immunized from liability if and to the extent the management, making an entrepreneurial decision based on appropriate information, could reasonably assume to act in the best interest of the company.

    Annual accounts

    GmbH directors must ensure that the company keeps proper books and accounts showing clearly the financial position of the company. Failure to fulfil this obligation can lead to a fine or even a term of imprisonment of the director.

    Contribution and Preservation of Share Capital

    The GmbH must have a share capital of at least 25,000 EUR. Upon the formation of a GmbH or increase of its share capital, the director(s) must affirm to the commercial register that the subscriber(s) of the (increased) share capital paid in the amount of cash determined in the Articles of Association, i.e. that the full amounts due were fully paid in, not paid back and are entirely to the free disposition of the director(s). If incorrect statements were made, directors are liable to the company.

    Section 30 para 1 GmbHG prohibits disbursing assets to shareholders without an adequate consideration, so-called unlawful repayments. For their determination, a “balance-sheet test” is decisive. This means, a payment is not unlawful, when:

    • the company’s counter-performance or restitution claim is fully-fledged and
    • the contract meets the cover imperative (payment of the market price).

    If an unlawful repayment of share capital contributions has occurred, the other shareholders are proportionately liable for the refund owed to the company. The directors whose negligent or intentional acts caused the illegal repayment are in their turn liable to those shareholders required to refund the sum.

    Duties in Relation to Shareholders

    Each director is entitled to call shareholders’ meetings. Those are to be called – inter alia – if this appears to be required by the interest of the company.

    Under German GmbH law, GmbH shareholders are entitled to instruct the director(s) of the company in detail through shareholders resolutions to act or not to act in a certain way. Directors must comply with those instructions unless they are illegal. A negligent or intentional violation of this obligation renders the directors liable to the GmbH for damages and may justify their dismissal for cause.

    Obligations Arising From Insolvency, Over-Indebtedness and Loss

    Insolvency and Over-Indebtedness

    In case of over-indebtedness or insolvency, each director must file a petition for the institution of an insolvency petition without undue delay but no later than three weeks from the date on which the over-indebtedness was ascertained or the insolvency arose (Section 15a Insolvency Code). Directors negligently or intentionally failing to meet this obligation (in time or properly) commit a criminal offence punishable by up to 3 years imprisonment and are liable for damages to the company.

    Loss

    If a balance sheet of the company shows a loss of one half or more of its share capital, the directors must call a shareholder meeting without undue delay. Directors failing to do so are liable to the company and subject to criminal penalties.

    Duties in Relation to Taxes and Social Insurance Contributions

    Apart from the obligation to file tax returns and pay corporate, trade and sales tax, the company must withhold some taxes (income tax, capital gains/settlement tax). The tax laws impose on directors a direct responsibility for tax payments. In case of violation by intention or gross negligence, they are liable personally (Section 69 German Fiscal Code) and subject to administrative sanctions or criminal penalties. Similar obligations apply to statutory social insurance contributions.

    Duties in Relation to Employees and the Environment

    Directors must observe special laws for the protection of employees (ArbSchG) and environment (USchG). If failing to do so, directors are personally responsible.

    Duties in Relation to Third Parties

    Directors’ Liability for an Appropriate Organisation of the Company

    Directors have the duty and responsibility to organise the company such that the life, health, property, and similar rights of third parties are not violated.

    Directors’ Liability for their Company’s Contracts, and its Acts or Omissions

    Such a liability arises e.g., if a director agrees to personally guarantee a contract and the company fails to perform. A director may also be personally liable for torts (i.e. civil wrongs, incl. negligence) authorised by him/her, committed by the GmbH.

    Antitrust Issues

    A company and its directors commit an administrative offence, punishable by up to 1,000,000 EUR, if they violate Art. 101 s. EC Treaty or provisions of the GWB. This encompasses e.g. agreements, having as effect the restriction of competition.

    Disqualification as a Director

    A GmbH director will be disqualified from the position as director if he/she is convicted for the commission of particular criminal offences like fraudulent bankruptcy, violation of the duty to keep books or delaying insolvency proceedings.

    “日默瓦（行李箱品牌名）所有者终止了在欧洲的所有分销协议”——2018年3月9日，德国主要商业报纸“Handelsblatt”的标题。终止原因是：日默瓦——著名高质量的行李箱品牌制造商——其在2011年后，于2018年重新设计它的分销网络：日默瓦的目标是再次提高其质量选择标准，不再将其产品卖给传统的商店，而是提供现代的购物体验。

    原则上，制造商可以根据其营销战略和任何变化的需求自由设计和开发其分销系统。相似地，他们可以在原则上自由选择销售中间商（分销商/经销商、特许经营者、代理人等）的数量和名称。他们原则上也可以自由转向选择性分销，目的是使其产品的分销符合某些标准（特别是关于分销的质量），从而也有可能减少分销商的数量。然而，作为例外，分销商可能强迫制造商提供这些产品——即制造商有很大的市场支配力。在这种情况下，与分销商订立合同从而产生交货义务的义务可能源自禁止歧视的规定。（德国《反竞争限制法》第1、20条，1、2款，19项）。

    如果制造商重新设计他们的分销网络——就像日默瓦以前和现在所做的那样，那么这个问题就变得特别相关，日默瓦在2011/2012年转向选择性分销（关于选择性分销的优点和可能的分销限制，见Legalmondo文章）。为了重新设计其分销网络，日默瓦终止了以前的分销协议，并提出缔结新的分销协议——根据新的协议，新的分销商承诺以某种方式展示货物，并购买和使用日默瓦的店内系统。日默瓦认为，原分销商的表现与新的商业理念和销售策略不符，这就是双方未能达成缔结一份新协议的原因。于是，分销商提出诉讼，目的是订立一份新的经销商合同，从而交付他的经销商店。

    慕尼黑地区法院驳回了这项诉讼请求(2014年9月9日的裁决，编号7249/13 HKO)。不过，慕尼黑高等地区法院确认了这种索赔(2015年9月17日的裁定，注释第U 3886/1/4 Kart)——主张制造商在有关的“高价和高质量手提箱市场”中处于领导地位，或者，相反地，如果分销商具有依赖性，并且因为制造商的手提箱不能被其他同等的手提箱所取代。这种依赖性尤其通过高分销率表现（即制造商提供了大量可比较的分销商）以及独特的设计和相关的高认可价值。现在，联邦法院推翻了这一判决，并将其发回重审(2017年12月12日的裁决，编号：KZR 50/15)。原因：分销商对制造商的产品分类依赖（“Spitzenstellungsabhängigkeit”作为“Sortimentsbedingte Abhängigkeit”的特例）没有得到充分的证明。尽管高分销率通常是决定性的，但在目前这样的质量选择性分销制度中，其意义可能不大。重新设计分销系统的决定性因素：“如果供应商选择在某个时间点转换到一个高质量的选择性分销系统，在之前的一段时间里，与品种相关的依赖关系通常会以较高的分销率来表示。”（第19款）

    制造商尤其可以提出两个论点，反对这种所谓的分类相关依赖关系，即

    (一)由制造商自行供应其产品的分销商数目远低于提供其产品的分销商总数（即包括通过其他渠道购买该产品的分销商）；及

    (二) 分销率将根据那些可与要求进入分配系统和交付的分销商相媲美的分销商确定（第27款)–正如德国联邦法院先前在裁定室内装潢案例（2000年5月9日的裁定，参考KZR 28/98，p. 12）。

    Practical conclusions

    实际结论

    “没有什么比改变更永恒”：在重新设计分销系统时，要仔细考虑是否想要/需要过渡安排–或者最好不考虑过渡安排。一个很好的不考虑过渡安排的理由是：它们可能会使排除不想要的分销商变得更加困难。因此，在日默瓦一案中，慕尼黑的较高地区法院驳回了制造商的反驳意见，即分销商的商业模式“以讨价还价为目标”–辩称，制造商给其他分销商“订立协议后12个月”的时间来满足新的定性标准。

    有关定性标准（也是要求/规格），请参阅Legalmondo上的其他文章，特别是关于平台禁令和价格比较禁令的文章，请参见Legalmondo上的文章。

    It is not only since the days of the Internet that brand manufacturers have had to contend with the fact that original products are offered outside of their authorized sales channels. The problem has since been significantly exacerbated, however. The relevant products are also referred to as gray market products.

    The internal market of the European Economic Area makes it possible to exploit certain price advantages – that is, purchasing in one Member State at a price that is lower than in other Member States and selling to the end customer while passing on (or not passing on) the purchasing advantage. This is made possible by the “exhaustion regime”, according to which the sale of products, which at one time were made available in the European Economic Area with the copyright holder’s consent, cannot be prohibited.

    Brand manufacturers’ attempts to counter this issue by means of distribution systems may be an effective instrument, but only if all distribution partners adhere to it. If a distribution partner pulls out, trademark owners (at least in Germany) are initially required to contact their distribution partner who is acting contrary to the contract. That is difficult when the distribution channel of the products in question cannot be traced by security systems (such as SKU numbers) beyond any doubt. A right to information against a third party generally does not exist. Thus, neither the distribution system itself nor the suspicion that the products are not of EU origin may be used easily to justify a right to information in selective or exclusive distribution. The Federal Court of Justice, for example, sees no reason to deviate from the exhaustion doctrine when implementing a selective distribution system (Federal Court of Justice, 1 ZR 63/04). In the case of a selective or exclusive distribution system (Federal Court of Justice, I AR 52/10), the burden of proof is reversed. Accordingly, it is initially the brand manufacturer itself that is responsible for providing evidence for its allegation of a non-EU product.

    Exceptions are only made where, for example, the SKU numbers were modified, since this makes clarification difficult. In such cases, trademark infringement and at the same time breach of competition law are given by way of exception and it is not possible for the dealer to invoke exhaustion (Federal Court of Justice I ZR 1/98). The deliberate misleading of the authorized dealer by a third party to breach the contract is also recognized as an exception (Federal Court of Justice I ZR 96/04), which regularly is not verifiable, however.

    By the way, the sensational December 2017 Coty decision of the Court of Justice of the European Union (CJEU C-230/16) (here you can find more: https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/) has not changed this basic presumption, either. In its Coty decision, the CJEU in the end confirms the exhaustion priority also and particularly for luxury products by referring to existing case law (specifically ECJ C-59/08).

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    There are, however, more options available. As confirmed by the ECJ (ECJ, C-337/95), an exemption from the exhaustion principle already applies when the type of sale may be designed to damage the reputation of the trademark. In the Court’s opinion, this applies to the sale of products at discounters, if such a sale damages the reputation of the products to an extent that their luxurious image and quality is called into question (ECJ, C-59/08). This applies, on the one hand, if other products are sold in the immediate “neighborhood” to the branded product, without meeting the same quality requirements (ECJ, C-337/95) or if the advertising methods are unsuitable (ECJ, C-63/97). Hamburg Regional Court, for example, found that the use of photographs that are unsuitable and detrimental to the luxury image of a brand justifies a prohibition claim (at least with respect to use of the photos) (Hamburg Regional Court, 315 O 339/13). The Federal Court of Justice saw improper handling of the brand in an erroneous and negligent labeling of products (Federal Court of Justice, I ZR 72/11).

    Düsseldorf Higher Regional Court has now also followed these CJEU guidelines by prohibiting the sale of high-priced cosmetic products, which are distributed in the framework of a strictly regulated selective distribution system, at a discounter (Düsseldorf Higher Regional Court, I-20 U 113/17). The Court explicitly referenced the CJEU, by repeating its principles and then applying them in the case of the discounter:

    “The permanent and extensive sale of the cosmetic products at issue on the online platform www…de is suitable to significantly impair the image of the application brands. The way in which the products are presented there draws the application brands into the mundane and ordinary. As the relevant public is used to from the multitude of Respondent’s conventional self-service department stores, the offering on www…de of everyday products is frequently dominated in the form of particularly low priced own labels, such as Z.’s own label “O.” Respondent’s motto applies here as well. The assortment ranges from food to electronics, household goods, clothing to cosmetics. Since Respondent’s online presence was merged with that of the company “B” that it had acquired, it is moreover not only Respondent that offers its goods for sale on the platform, but also third parties may market goods via the online platform. The portal is designed to be functional and oriented toward products that are on sale. Customers are able to collect PAYBACK points with each purchase and may make use of financing. In some cases, goods are advertised at “instead of prices” and red letters indicate in attention-getting manner what percentage customers will save compared to the original prices. Product consultation does not take place.”

    By offering luxury products at random alongside every-day and mass products without any kind of prominent presentation and becoming affordable through financing options, the products would be placed on a level with the other items offered, thereby significantly affecting the prestige value of the products. For this reason, Düsseldorf Higher Regional Court pronounced a complete ban on distribution for the online platform and the department stores.

    Conclusion:

    Even if the Düsseldorf Higher Regional Court’s decision is not to be considered revolutionary in light of existing CJEU case law, it certainly ensures some impetus in proceeding against gray market dealers, since national courts are now no longer facing the “uncomfortable” hurdle of applying CJEU case law, but rather in the customary fairway of national case law. In principle, Düsseldorf Higher Regional Court case law may not be understood as a blank check, however. Even Düsseldorf Higher Regional Court did not allow a general ban, but rather weighed individually whether the distribution in its concrete form could be prohibited. In the future, it will also be important to work out what in particular will determine the extent of the ban.

    The author of this post is Ilja Czernik.

    公司可以通过分公司、子公司或电子商务–或间接–通过代理商、分销商、特许经营商或佣金代理商在全球直接销售他们的产品。

    德国联邦法院现在首次裁定，佣金代理商也可在合同终止时要求赔偿(2016年7月21日的决定，参考第I ZR 229/15号)。

    什么是佣金代理商？

    佣金代理商是自营商他们经常受委托以自己的名义为另一家公司（即供应商）的帐户订立交易的任务。它们不同于分销商，因为分销商自己买卖产品，因此本身就承担分销风险（详见Legalmondo中关于德国分销协议的文章和关于“德国”分销商赔款–如何避免的文章）。

    针对佣金代理商的新规定是什么？

    联邦法院明确–按照为分销商解决问题的判例法–如果符合两个类比要求，也就是如果佣金代理商符合下列条件，则可在合同终止时要求赔偿。

    （一）作为商业代理被纳入供应商的销售组织；以及

    （二）必须向供应商提供客户数据，使供应商在合约终止后，能够继续从与这些客户的业务中获得实质利益。

    关于第二项要求(提供客户数据)，联邦法院指出先决条件是–作为一般规则-符合，因为成文法规定佣金代理商必须提供客户数据(sec.384 para.2 德国商法典）。因此，没有任何具体的合同义务，客户根据法律“属于”供应商。

    如果分销涉及“匿名大众业务”（即客户支付现金，销售中介由于客户关系管理措施而不知道客户名称），佣金代理商可能无法提供相应的客户数据。在这种情况下，根据联邦法院，如果佣金代理商提供了“有关销售过程本身”的数据，则应足以使供应商能够估计哪些类型的货物有需求（这与汽车、时装或电子产品等高质量产品的分销要求大不相同）。

    双方的义务可以让第三方承办吗？

    是的，提供客户数据的义务可以让第三方承办。然而，这种做法目前不会100%安全地将索赔请求排除在外，因为联邦法院没有明确规定，如果供应商仅有实际机会使用客户数据，佣金代理商是否也可以要求赔偿。因此，为了安全起见，还必须排除使用数据的机会（见下面的“实用信息”）。

    特许经营商呢？

    关于特许经营商作为销售中介人的问题，联邦法院确认，仅仅是顾客的事实连续性不足以导致赔偿要求(从而确认了反对2015年2月5日，对传统烘焙连锁“Kamps”的特许经营人所作的决定。第VII ZR 315/13号）。

    实用贴士

    保护自营商业代理人的条款也可同样适用于佣金代理商。

    关于根据德国法律订立的现存协议：如果符合两项类似要求，终止时的赔偿要求很有可能得到满足。

    关于根据德国法律订立的将来的协议，则如下：

    • 一般来说，通过排除佣金代理商提供客户数据的义务，可以避免赔偿要求。但是，应该明确地规定这种排除。或者，为了保险起见，除此之外，供应商可以强制自己在与佣金代理商的合同终止时锁定或删除客户数据。
    • 或者，可以通过选择另外的法律和管辖权来避免赔偿权（考虑到“德国”赔偿要求仍可作为《罗马第一条例》第9条意义上的压倒一切的约束性条款而适用的风险）。
    • 最后，如果佣金代理商在欧洲经济区以外行事，则可通过简单的弃权证书排除赔偿要求（根据类似的申请《德国商法典》92c)。

    10 practical aspects to consider for an adequate timing

    Meanwhile similar legal standards apply in most industrialized countries if an employment relationship shall be terminated; however, in every jurisdiction some specifics still need to be considered. The following ten aspects may be a first general guideline for the termination of an employment contract in Germany, in particular regarding its timing.

    1. In some cases notice needs to be given within a two-week period

    In case of gross misconduct an employer may be entitled to terminate an employment relationship forthwith. However, if notice of termination is not served to the employee within two weeks after acknowledgement of the respective facts, this right is forfeited.

    1. Notice has to be given in writing

    The notice has to be signed by the legal representative of the employer and delivered to the employee. Neither a transmission by facsimile nor an email with a scanned copy is sufficient. If the representative is not on site, timing may become an essential aspect of the termination process.

    1. Ordinary dismissal may be prohibited by a collective bargaining agreement

    Collective bargaining agreements often provide a ban on ordinary dismissal under certain circumstances (e.g. based on the age of the employee). A careful assessment of all applicable collective bargaining agreements before a termination is therefore indispensable.

    1. Insufficient information of the works councils may lead to an invalid termination

    The establishment of a works council is not mandatory in Germany. However, if it is established, it needs to be notified and heard before every termination of an employment contract. The notification must contain a sufficient description of the grounds for the termination, otherwise the termination may be deemed invalid. Having been notified, the works council has one week (in some cases: three days) to object. Any termination before such term without consent of the works council would be deemed invalid as well. Timing may therefore become again an essential aspect of the termination process.

    1. General dismissal protection is related to seniority and size of the establishment

    General dismissal protection is basically applicable in establishments with more than 10 employees. Exceptions may apply in favour of those employees whose employment relationships commenced already before 1st January 2004. In addition, the respective employee needs to have at least a seniority of six month. If these criteria are met, the termination has to be justified by operational reasons, misconduct or personal incapacity as set out in the Dismissal Protection Act.

    1. Some terminations may need prior permission

    Irrespective of the application of the afore mentioned Dismissal Protection Act some kind of terminations (e.g. employees on parental leave) may need a special permission of the works council, the Labour Court or the respective public authority as applicable. These procedures may last from some days up to two years.

    1. There is no general claim for severance payment in case of an unfair dismissal

    Aside from those agreed in termination agreements there is no general claim for severance payment in case of an unfair dismissal. In general, the statutory remedy will only be reinstatement and back pay. Only under certain circumstances each party may apply for the termination of the employment relationship and a severance payment in front of the Labour Court. However, in most of the cases parties end up in a voluntary termination agreement.

    1. Non-competes may lead to extensive payments and cannot be withdrawn forthwith unilaterally without cause

    A binding covenant to non-compete leads to a compensation payment of at least 50 % of the former salary for every month of its duration. Even in case of a justified termination it may only be terminated with a notice period of one year. However, both parties may agree upon its immediate suspension in a termination agreement.

    1. Any termination agreement has to be in written form as well

    Also a termination agreement needs to fulfil the same formal requirements as set out already above under point 2. Again, if the representative is not on site, timing may become an essential aspect of the bargaining process.

    1. The forfeiture clause of a termination agreement may not cover all claims 

    Termination agreements often contain general forfeiture clauses at their end, covering also those potential claims which have not been explicitly mentioned or identified by the parties. However, some claims (e.g. pension claims) may not be covered by such a (general) forfeiture clause.

    Please note that these ten aspects contain general information only. Further details as well as possible exceptions therefore need to be checked on a case-by-case basis by a professional advisor.

     

    Tha author of this post is Alexander Lentz

    Talking to clients five years ago the trend was clear, application was to be filed for the EU Trademark only, as it was faster, broader, in relation to the geographical scope cheaper and easier to handle. However as we experience now the EU trade mark has some downsides for which reason it is advisable to apply for a national trademark alongside the EU trade mark. And these are the reasons why:

    Genuine Use

    One of the main risks with trade marks is the fact that they must be used five years after registration. That use however must be genuine. According to the ECJ (C 149/11) “there is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether there is real commercial exploitation of the mark in the course of trade, particularly the usages regarded as warranted in the economic sector concerned as a means of maintaining or creating market share for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark.“

    The problem which occurs from time to time is whether a trade mark used only in one member state or in a specific part of that member state is to be regarded as genuine use in the meaning of these ECJ findings. Whilst the ECJ (C 149/11) has not denied genuine use because of a territorial restricted use within one member state per se it still has not excluded that possibility and what is more has even given the national courts the decision making authority to assess “whether the mark in question is used in accordance with its essential function and for the purpose of creating or maintaining market share for the goods or services protected.“ Consequently a French court could decide that a use of a mark in Germany is insufficient for upholding a EU trade mark and thereby decide that the mark has to be deregistered. This reason alone provides for the necessity to have a national trade mark as plan B.

    Counterclaim

    When the plaintiff’s trade mark is a German trade mark, there is no possibility for the defendant to raise a counterclaim calling for a revocation of that plaintiff’s trade mark. The defendant has to file for an additional cancellation order before the German Patent and Trademark office. That additional cancellation proceeding however in general does not even bar the violation proceedings. So these will often be decided long before the cancellation proceedings in the last instance.

    That is different when it comes to the EU trade mark. The EU trade mark can be declared void during (!) the violation proceedings by filing a counterclaim. Alternatively, the EU trade mark court hearing a counterclaim for revocation or for a declaration of invalidity may stay the proceedings on application by the proprietor of the EU trade mark and after hearing the other parties and may request the defendant to submit an application for revocation or for a declaration of invalidity to the Office. With the consequences that the violation proceeding is dead for ten years which it takes to pursue the cancellation proceedings through all instances.

    Place of jurisdiction

    The place of jurisdiction of a EU trade mark is limited to the place where the event which gave rise to the harm occurred (“Handlungsort”). The German trade mark however also provides for the place where the harm arose (‘Erfolgsort’) as place of jurisdiction. That however gives the plaintiff much more possibility to forum shop.

    Statute of limitation

    The EU trade mark does not provide a uniform statute of limitation. The ECJ (C 479/12) has decided that claims for injunctive reliefs become time-bared under the regulations of the national law. However in some case it can be very unclear which national law applies and therefore the same case can be seen differently in the different countries. When the plaintiff’s trade mark is a national trade mark the scope of application of the national statutes of limitation is clear and there are no further insecurities which are never to relish when have court proceedings.

    The author of this post is Ilja Czernik.

    Stephan Dittl

    Practice areas

    • 知识产权
    • 诉讼
    • 商标和专利
    Contact Stephan