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German Gaming Law updated No. 19 |
Newsletter on Betting and Gambling Law
No. 19 of the 3rd of March 2005
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Contents:
1. Editorial: All eyes are focussed on Karlsruhe
2. Regulation of General Betting Agreements under German Law
Part 1: International Private Law
3. Will the cancellation of the trademark “LOTTO” be followed by that of “TOTO”?
4. European Gambling Briefing on the 25th and 26th of April 2005 in Brussels
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1. Editorial: All eyes are focussed on Karlsruhe
Dear Readers,
In our last newsletter, we reported on the decision pending before the German Federal Constitutional Court in Karlsruhe. In view of the planned comprehensive constitutional clarification, a great number of courts have responded by suspending current competition law, adminstrative law and criminal law proceedings in anticipation of the Constitutional Court Decision.
Astonishingly, the actual addressees of the letter (which we cited in our last newsletter) from the Federal Constitutional Court, the local regulatory authorities, appear to be the least affected by it. Despite the clear request from the highest German court, many of the regulatory authorities wish to continue to enforce interdiction orders against betting shops by means of socalled direct enforcement which carries the threat of sealing betting offices and the seizure of computers and printers, if the operators of the betting offices do not close overnight. This is unlikely to please the Constitutional Court who will probably have even more work as a result.
The Staff
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2. Regulation of General Betting Agreements under German Law
Part 1: International Private Law
- by Attorney at Law Martin Arendts, M.B.L.-HSG
Alongside competition and trademark problems, civil law issues have begun to play an increasing role since a liberalisation of the sports betting and gambling market has become a real prospect.
In many cases, in relation to German customers, it is the law of another state which is chosen as the basis for the contract between the customer and the provider (e.g. “Allgemeine Wettbestimmungen” (General Betting Regulations) under Austrian Law). Art. 29 of the EGBGB (Einführungsgesetz zum BGB, the Introductory Act to the German Civil Code; by which e.g., International Private Law is regulated) pertains to this choice. This provision applies to contracts which do not relate to the professional or commercial activities of the customer. This is the case for almost all business connections between foreign providers with German customers and has the effect that stringent regulations of the state in which the customer lives (here, in particular the AGB-Inhaltskontrolle (judicial review of a business’s general terms and conditions) which we will explore in our second part on this theme) cannot be excluded. Where a dispute later arises, the customer can therefore invoke those provisions, which are beneficial to him, and claim, inter alia, that individual clauses in the foreign provider’s terms or even that the betting contract itself is invalid.
Under Art. 29, para. 1, no. 1 of th EGBGB, this is also the case where the conclusion of the contract is preceded by a clear offer or an advertisement in the customer’s country (e.g., by a receiving office or a website, i.e., banner advertising) and if the user “carried out the legal acts necessary for the conclusion of the contract” there (i.e., the placing of a bet in the receivorship office, e.g., using the customer’s computer).
Under Art. 29, para. 1, no. 2 of the EGBGB, this also applies where the user’s contractual partner or his representative in that country accepts bets from users in that country (e.g., by a betting office in Germany).
The clauses which would be invalid under German law will be explored in the second part (AGB-Inhaltskontrolle: judicial review of a business’s general terms and conditions, which will feature in the next edition of the newsletter).
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3. Gambling and Trademark Law: Will the cancellation of the trademark “LOTTO” be followed by that of “TOTO”?
- by Attorney at Law Martin Arendts, M.B.L.-HSG
The State gambling providers are not just trying to protect their monopoly position by bringing competition proceedings against foreign and German gambling providers (in particular, commercial gambling agents) but they are also trademarking common terms such as “Lotto” and “Toto”. In this way, the state providers, in the form of the cartel, the Deutscher Lotto- und Toto-Block, sought (and continue to seek) to prohibit the use of all combinations with these generic terms (e.g., “freelotto”).
The cartel suffered a setback regarding the trademark “LOTTO”. The Federal Patent Court has withdrawn the trademark protection of “LOTTO” for gambling (an appeal is pending before the Federal Court of Justice). The Deutscher Lotto- und Toto-Block only remained successful with regard to other trademark classifications, such as the cashless transaction of payments. A labelling as Lotto-Chipkarte (Lotto-Chip card) was determined to be unique and signalised – according to the Federal Patent Court – black humour.
Following the LOTTO Decision, several European bookmakers have applied for the cancellation of the trademark protection of “TOTO” which is also held by the members of Deutscher Lotto- und Toto-Block. In the cancellation proceedings, it is submitted that “Toto” is merely an abbreviation of “Totalisator” (totaliser). On this basis, this generic term should not be protected by trademark and thereby monopolised by the state providers.
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4. European Gambling Briefing on the 25th and 26th of April 2005 in Brussels
One of the most important events relating to European Gambling Law will take place in Brussels in April 2005. Senior representatives from supervisory authorities, specialised lawyers and advisers will speak on recent legal developments – from our point of view, this presents a great opportunity to exchange views and information on new economic prospects, regulatory questions as well as advertising options.
Lawyer Martin Arendts will speak on the recent developments in Germany and will be available to answer questions throughout the conference.
For further details on the program, please see the attached brochure (pdf file).
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© 2005; Republication is desired provided the original source, together with contact information is cited. A copy or notice of publication is requested.
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