Fieldfisher successful for Bauer Media Group in the Dispute regarding the Magazine “ARD Buffet”
Public service broadcasters must not support publishing houses in publishing magazines. According to the opinion of the German Federal Court (BGH), this interferes with the freedom of the press too much (judgment of 26 January 2017, case no. I ZR 207/14). Accordingly, the publishing of the program guide “ARD Buffet” by the Burda publishing group is unlawful.
SWR (Südwestrundfunk) has been producing the TV show “ARD Buffet” since 1998. This includes a cooking show, decoration ideas and a contribution from an advisor. As from 2005, the Burda publishing house published the magazine “ARD Buffet – the monthly magazine with the successful TV show” in cooperation with SWR; to this end, SWR had granted Burda rights in the mark “ARD Buffet”.
The decision of the BGH has now made it clear that a public service broadcaster is infringing laws governing fair trade if it grants a publishing house the right to use protected marks used for its TV shows to name printed works offered by the publishing house. After the decision on the “Tagesschau” App, the BGH once again sets narrow boundaries for public service broadcasters when they operate outside their actual remit.
However, in its judgement, the BGH followed the opinion of the plaintiff, Bauer Media Goup. In the opinion of the BGH judges, the use of these marks leads to an illicit advantage for Burda. According to the judgment, public service broadcasters may only publish printed works accompanying TV shows, which they offer themselves. However, in this process, they must not interfere with the freedom of press any more than is required to fulfil their duties. SWR had overstepped this boundary and interfered with the competition of the publishers via the magazine “ARD Buffet”, by supporting the publication of the printed works. The district court had dismissed the case; the appeal of the plaintiff was also unsuccessful.
In these proceedings, which had attracted a lot of attention in the industry, Bauer Media Group relied on Dr. Philipp Plog and Stephan Zimprich from the IP & Media team of the Hamburg Fieldfisher office. The team had most recently called attention for its successful representation of the US rating portal Yelp in a number of lawsuits against the business model of the portal operator.
“The judgment is a milestone because it draws a clear line for the activities of the broadcasters in the print market, as has already been drawn for the online market in similar form last year, by the judgment regarding the “Tagesschau” App”, says Dr. Philipp Plog as advisor of Bauer Media Group. “The BGH has confirmed the position of the Bauer publishing house with unusually clear words and interpreted section 11a of the broadcasting treaty (Rundfunkstaatsvertrag) with such clarity as the observers of the case could hardly expect.”
LG Hamburg (district court) - judgment of 19 September 2011 - 315 O 410/10, ZUM 2012, 609
OLG Hamburg (higher district court) - judgment of 15 August 2014 - 5 U 229/11
Advisers Bauer Media Group: Fieldfisher, Hamburg: Dr. Philipp Plog, Stephan Zimprich, Martin Lose
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