Attorney-at-Law Michael Horak, graduate engineer (Electrical Engineering), LL.M. (European Law)
 


 Overview  Practice  IP Law  Sample Texts  German Acts  Court Rulings  Contact  Imprint  Links

 

patents-trademarks-copyright-europe

beukenberg-rechtsanwalt-schild

ip-attorney-germany

buecher_1

 

 

 

>Start >Overview >Practice >Computer Law >Online Law >E-Commerce >E-Contract
 

>Start

The internet in the era of e-commerce

  • A chance or a risk?
  • Agreement
  • Future

MetanoLine

The internet in the era of e-commerce

It is hard to believe that the internet has existed for less than 30 years. It was not, however, until 1991 that the world wide web was designed as a part of the internet through which it gained incredible popularity. It is mostly used for the purpose of e-mail communication. The greatest advantage of this form of communication is that an e-mail can be sent to a number of recipients without the demand for additional time or expenses. The greatest advantage in business communication is that a short e-mail message can be drafted more time-efficiently than for instance a traditional letter or a facsimile. At the same time, however, it is highly important that an e-mail is an insecure means of communication. It is not an “electronic letter”, but rather an “electronic postcard”, and thus anyone concerned with its distribution can read it. Since up-to-date technology does not allow for sufficient security yet, commercially sensitive data should not be transferred via e-mail. Not even coding mechanisms provide for the desired security, either. Moreover, it is impossible to predict the route an e-mail will take - for instance, an e-mail sent from one district in Hanover to another one can “travel” via Frankfurt, the USA and Berlin, before arriving at its destination in Hanover. The sender of an e-mail can control neither the period of delivery nor the number of countries through which his e-mail is going to pass. Moreover, it should be taken into consideration that the content of a particular e-mail must comply with the laws applicable in all countries through which the e-mail is transferred (for instance, issues relating to copyright law, data protection, defamation, etc.) – such are the current legal regulations in most countries, including Europe and especially Germany.

www.chance-and-risk.de

Apart from e-mail communication, the internet is increasingly used for purposes of information distribution, for the purchase and sale of products and services as well as for marketing purposes. The ideal address for a German company would be www.companyname.de. Depending on the purpose such a home page is to serve, numerous legal issues emerge which should not be underestimated and which can be solved in advance - but most definitely must be solved in the long term since the dogma of “lawless cyberspace” is plainly false. What this dogma is correct about is only that there is no separate act relating to the internet. Nonetheless, regulations applying to “traditional” areas of law, such as the law on competition or trademark law, must be complied with when setting up an activity in the internet.

For instance, according to the German law on competition, even if company’s home page contains only information on that company, this information must be neither unfair nor misleading. Regulations relating to trademark law must already be taken into consideration when choosing a domain name. Furthermore, whenever information is published, an imprint is required by law (Impressum requirement, § 6 of the Teleservices Act), as is the case for newspaper and magazine publishers.

Those wishing to use the internet to trade with products and offer services must take into account numerous additional legal requirements. For instance, if the written form is required for a certain business transaction by law or even by the terms of business, an e-mail or an online form is not considered to be “written” since it is lacking a signature. Moreover, in the existing legal practice an e-mail has hitherto not had document status, which means that an e-mail can in no case be admitted as evidence.

Terms of business can be applied with regard to individuals provided that they have been “included” in the contract, which in practice means that placing an order via the internet must be preceded by an explicit reference to the terms of business which have to be accessible and emphasised.

A considerable advantage of an internet presentation for middle-sized enterprises is connected with the fact that all enterprises have equal chances of setting up a similar representation in the internet for advertising purposes. For this, neither worldwide subsidiaries in top locations are necessary, nor expensive high quality equipment and furnishing. All you need is a professional home page.

The e-contract

According to German law, the essential elements of a binding contract include an offer by one party and its acceptance by another party. The offer must be binding. Therefore it must be more than a simple request to make an offer. In many cases clicking the Order button does not at all mean that the ordering party has accepted a specific offer, but that it was he, who has made an offer of his own.

The contract is concluded when the offer is accepted without any reservations. When concluding a contract via the internet there is usually no doubt as to reservations, since the ordering party cannot make any changes, but only fill in predefined dialogue fields. This raises the question about when the contract is concluded - this question is important since this is decisive for the last point of time when the contract can be resigned from. Under German law this depends on the means by which the contract reaches the contractual partner. In case of a traditional contract, for example by regular mail, there is no problem. In case of an internet contract there is no such definite answer to the time question as with a regular mail. For instance, in case of an internet transaction there is a possibility that when both contractual partners are online simultaneously the transaction can be handled within a few seconds. The contract is then effective from that point on. It is, however, also possible that the recipient reads the ordering e-mail later and thus gets the order at a later point of time.

In addition, a contract obliges the contractual partners to mutual services. The ordering party typically has to pay a certain amount of money. In many cases the consumer chooses to pay in a conventional way due to a lack of security of internet payments. Here, it is important to know that the contract is concluded independent of the time of payment.

In case of a legal dispute before a court, proof of the offer and of its acceptance has to be given. Presently, most courts do not accept the ordering e-mail as sufficient proof. In business communication a subsequent written confirmation of the order helps solving this problem.

Future Prospects

The European directive on distance selling and electronic commerce (the latter being still merely a proposal) which has not been implemented in German law as yet is going to bring about numerous changes. Both directives aim primarily at protecting consumers. For instance, a consumer will be entitled to demand – prior to concluding an agreement - certain information relating to goods or services or to the company itself. Furthermore, consumers will have the right of withdrawal, i.e. they will be able to withdraw from the contract concluded via internet within a period not less than seven days. Moreover, suppliers will be obliged to carry out an order within 30 days at the most.

According to the directive proposal of the EU Commission concerning electronic business transactions, the existing regulations relating to the validity of agreements in member states, especially those demanding the written form, will be extended to include electronic signatures as proof for internet agreements.

In spite of the above and other attempts to provide for legal security, some uncertainties still remain even within this guideline. The situation presented above concerning the question who initiated the offer, is not going to be regulated. Since there is no uniform approach to that matter in the member states, cross-border legal relations are likely to meet considerable hindrances. For a French customer it is unclear whether a German supplier merely gives an opportunity to place an offer or if he is supposed to place a binding offer. Whereas the French consumer believes that the contract is binding - according to French law - the German supplier might not yet consider the offer placed by the customer binding - according to German law.

In essence, it can easily be seen that the risks resulting from lacking legal regulations must not be underestimated. The benefits, however, clearly outweigh the risks, since the legal risks can be reduced to a minimum at a fair price, with the only risk remaining being the general risk in any business undertaking. Another point in favour are the nearly infinite opportunities of worldwide international transactions.

 

Trademark law trademark rights trademark trademarks trademark protection likelihood of confusion danger of confusion the need to keep a mark free for the trade distinctiveness Community trademark Community trademarks IR-trademark European trademark EU-trademark symbol mark trade name trademark attorney trademark Hanover Stuttgart Frankfurt Munich trademark registration at the DPMA German Patent and Trademark Office at the OHIM and at the WIPO title of a work title protection firm company protection company logo legal dispute jurisdiction period of protection protective rights industrial property protection notorious registered application processing nullity procedure application procedure lawyer before the Patent Office in Munich for clients in Germany Europe and worldwide attorney-at-law trademark law name protection trademark act concerning trademark law entering of a trademark in the trademark register owner of a trademark trademark registration Madrid Agreement Protocol to Madrid Agreement trademark agreement trademark office German Patent and Trademark Office ohim habm WIPO horak attorney attorney-at-law Hanover Community Trade Mark Registration colour-trademark word mark picture mark word-picture mark trademark brand Trade Mark Law trademark trademarks law office attorney Hanover priority business designation infringement claim intellectual property nullity industrial property protection IP law law patent Patents patent protection patent search mark search name company Trade Mark Domain TLD domain name protection copyright author right computer law software law design secret know-how publicity advertising law on competition discount allowance cartel law cartel internet online law internet law licence licences Hanover inventor founder media telecommunication TKG consumer EU Europe Hanover Lower Saxony registration right lawyer patent attorney attorney-at-law lawyer contract counselling law office society franchising right of sale media law TV law foodstuffs law concerning foodstuffs pharmaceutical products German Patent Office European Patent electrical engineering GRUR IBA IEEE VDE VBP EWiV EAK UWG Trademark Act Patent Act GWB Act on Discounts non-disclosure contract agreement Hanover attorney-at-law attorney ATTORNEY contract standard sales contract counsellor agreement lawyer trademarks collective registration trade mark attorney-at-law lawyer brand branding trademark design logo trademark sign confusion trademark adovocat trademark law implementing regulation trademark costs employment law warning notice internet internet law online law Reginal Court Landesgericht LG Stuttgart job offer jobs advertising agency Regional Court LG Muenster domain law domain domain-grabbing domain lawyer URL Web design Web hosting Regional Court LG Munich LG Berlin LG Regional Court Duesseldorf LG Regional Court Essen LG Gelsenkirchen CD-Rom development portfolio trademark agent trademark agency production comic right computer law graphics law concept corporate design corporate identity design law electronic publishing electronic media project print advert advertising law logo project of a logo flyer drafting questionnaires business printed paper LG Osanbrueck LG Gelsenkirchen Wennigsen Laatzen Langenhagen Hybride Production Internet-presentation internet presence Higher Court LG Essen internet-service campaign classic advert Lower Saxony nds communication law communication agency layout logo new media trademark law trademark act trademark implementing regulation protectable signs application area protected marks and other signs requirements contents and grounds for refusal and business symbols transfer of licences and trademarks marks business symbols; precedence seniority of a trademark as a trademark protectable signs trademark protection precedence seniority of a trademark requirements fort he protection of a trademark to enter in a register ownership grounds for refusal registered trademarks entered into the registry relative well-known earlier mark the scope of protection infringement exclusive right of the owner of a mark; statement of claim exclusive right of the owner claim for nonfeasance; statement of claim representation of a registered trademark claims against agents or other representing parties information claim protection limitation statute of limitations forfeiture of a right forfeiture of rights binding effect of trademark registration use of names and descriptive data spare parts shop exhaustion forfeiture of rights due to the insufficient use of a trademark trademark use trademark transfer of a right legal ownership; deliveries to the owner physical rights compulsory enforcement; bankruptcy proceedings licences registered trademarks registration procedure registration requirements day of registration; registration claim; publication of registration foreign priority examination examination of grounds for refusal absolute grounds for accelerated patent examination withdrawal of the application modification of an application correction of an application registration objection objection of nullity insufficient use of a trademark decision on objection correction; division; duration of protection prolongation modification register publication duration of protection prolongation relinquishment expiration and nullity; nullity proceedings expiration nullity due to absolute grounds for refusal nullity due to existence of older rights effects of nullity due to expiration or nullity cancellation by the Patent Office due to expiration cancellation procedures before the Patent Office on absolute grounds for refusal cancellation procedures before ordinary courts general rules concerning proceedings before the Patent Office jurisdiction Patent Office justification objection expert opinion court hearing investigation; hearings; wording decisions; communication of the possibility of appeal access to the files; access to the register proceedings costs and charges recollection proceedings before the Patent Office appeal; proceedings in open court participation of the president of the Patent Office oral debate decision on objection costs of the objection proceedings; preparation of an oral debate taking of evidence wording judicial finding of fact; legal hearing delivery of the decision; delivery; justification correction representation; power of attorney application of further regulations; invalidity; access to the files proceedings before the Patent Office legal complaint correction of the complaint; grounds for complaint more participants application of further regulations decision on legal complaint award of costs common regulations duty to tell the truth official language und deliveries legal assistance collective trademarks ownership registrability of geographical indications of origin as collective trademarks limitations of protection; use right to sue; recompense for damage regulation governing use of the marks lawyer attorney-at-law music music law lawyer copyright record contract producer contract collecting society collecting societies gema society for musical performing and mechanical reproduction rights gvl society for exploitation of ancillary copyrights contract law publisher’s contract publishing contract artist contract name law right to use a name legal counseling electronic music music examination of the application Änderung der Markensatzung Verfall nullity wegen absoluter Schutzhindernisse Schutz von Marken nach dem Madrider Markenabkommen und nach dem Protokoll zum Madrider Markenabkommen; Community trademarks protection of trademarks according to dem Madrider Markenabkommen application of rules of this act IR application costs entry in the register subsequent extension of protection effect of international registration absolute grounds for refusal of protection examination of the absolute grounds for refusal objection subsequent refusal to protection objection and application for cancellation on grounds of an internationally registered trademark exclusion from rights due to lack of utilisation of transferred trademarks with international registration trademark protection according to the protocol of the madrid trademark agreement application law on competition lawyer law Hanover regulation of this act IR-application fees note for the file; entry in the register subsequent extension of protection Adequate application of the regulations regarding the effect of According to the Madrid Agreement concerning the International Registration of Marks Trademark Agreement internationally registered marks transformance of an international registration Community trademarks application of Community trademarks at the Patent Office application of these regulations subsequent trademark subsequently declared void transformation of community trademarks community trademark courts; community trademark litigation informing the comission territorial jurisdiction of the community trademark courts insolvency procedure geographical indications of origin indications of origin protection of indications of origin names protected as geographical indications of origin data or signs scope of protection; claim for damages expiration protection geographical indications of origin according to the regulation (EWG) Nr 2081/92 application for the registration of a geographical indication of origin Application for altering specifications opposition proceedings responsibilities within the patent office jurisdiction; appeal monitoring right to forbearance; claim for damages expiration authorisation to create regulations protection of individual geographical indications of origin other regulations relating to the procedure of application and objection according to the regulation (EWG) Nr 2081/92 rules regulating the application of the directive (EWG) Nr 2081/92 penal regulations fine regulations seizure at import and export penal regulations fine regulations punishable infringement of statement of invention punishable use of geographical indication of origin fine regulations seizure of goods at import and export seizure on infringement of rights an invention Withdrawal; Objection; repeal of seizure Responsibilities claim for damages appeal claim for damages unjustified seizure seizure according to directive (EG) Nr. 3295/94 seizure due to unlawful marking with geographical indications of origin preliminary regulations application of this act limits for assertation of infringement claims rights in rem; compulsory enforcement of judgement insolvency procedure licenses examination of registered trademarks for absolute grounds for refusal of protection publication and registration proceedings of interference registration duration and prolongation of protection cancellation of a registered trademark due to expiration cancellation of a registered trademark on absolute grounds for refusal cancellation lawyer law advice email online counselling lawyer lawyers lawyer search lawyer law legal advice legal counselling lawyer search attorney-at-law lawyer specialised lawyer specialised lawyers specialized lawyer search service lawyer directory of lawyers attorney lawyer act acts rulings judgement judgement jurisdiction advice counselling legal advice help information law legal information legal counsel legal help lawyer’s hotline telephone 0190 service service number telerat telephone information service telephone counselling telephone instant counselling direktrat discount-broking direct counselling telephone lawyer telephone legal advice court law office law offices domain domain law internet internet law names right to a name trademark trademarks claim sue higher regional court oberlandesgericht olg Software patents patents patent protection patent registration infringement of a patent patent attorney patent law office Patent Office Patent Act European Patent Convention European Patent Community patent convention litigation litigation protocol trademark infringement filing a trademark registration EU-trademark IR-trademark OHIM EPO European Patent Office German Patent and Trademark Office design Community designs standard Trademark Act trademark guideline IT Internet Intranet IT law Internet-law media law net law computer law databank databank protection data protection design law design protection data protection law domain name liability Domains domain law trademark law online contracts telecommunication copyright provider agreement project contract software protection software law software licences licences ICANN-proceedings WIPO OMPI domain name dispute resolution domain name arbitration ASP law office attorneys joint practice lawyers co-partnership specialised lawyer OLG Munich licensing contracts media services teleservices e-commerce electronic-commerce electronic signature Signature Act surrender information rights to use online-right to representation online rights of use web design e-commerce-guideline tele-shopping Long Distance Sales Act new media multimedia ICANN internet law legal counselling agreements law of contracts drafting of contracts e-business representation law on competition provider trademark law trademark infringement warning notice interim injunction: Trademark Act industrial property protection infringement of a trademark warning notice title title protection right to a name trademarks registered trademarks used trademarks known trademarks company symbols firm lawyer multimedia trademark trademarks competition warning notice company symbols HTML law attorney-at-law trademark trademark law infringement of a trademark right to a name warning notice interim injunction word mark picture mark domain names trademark slogan ad trademark branding mark communication advertising vehicle advertising medium branches target groups competence Internet web design package design direct marketing media design agency advertising agency flyer leaflets Corporate Design business reports business papers commercial papers business equipment visiting cards package design presentation Multimedia radio spots TV-Spots posters advertising measures advertising novelty radio ad new media e-commerce full service agency lawyer lawyers collection attorney attorneys counsellor counsellors trademark patent collections patents trademarks law office law offices solicitor solicitors barrister barristers counsel law firm law firms lawyer attorney-at-law avocat avocats advokatur abogado abogados bufete de abogados despacho de abogados estudio jurídico estudio jurídico patent peru trademark attorney attorneys lawyer lawyers investments collection counsel counsellor counsellors solicitor solicitors barrister barristers civil law commercial law collections patents trademarks investment law office law offices law firm law firms attorney-at-law law office abogado avocat abogados avocats bureau d'avocats estudio juridico bufete de abogados avvocato competition law competition Act on Discounts Trademark Act attorney-at-law lawyers Long Distance Sales Act long distance sales fax advertisement law of obligations telephone advertisement customer loyalty cards clubs miles copyright patent law legal counselling company protection copyright law economic law attorney-at-law lawyer law on competition copyright law trademark law Act on Discounts regulation governing free gifts regulation governing indication of prices general terms and conditions of trade AGB lawyer attorney-at-law court proceedings law advertising agency copyright law of contracts admission OLG Regional Appeal Court Köln LG Köln higher court Cologne law concerning medical profession medical practitioners’ liability social health insurance doctor law of medicine Berlin lawyer Hamburg Munich Stuttgart Frankfurt Düsseldorf Darmstadt Hanover Brunswick Magdeburg media law warning notice UWG German unfair competition act judgements Web space higher court software software law e-mail e-mail-ad email spam spamming media services pseudonym domain-grabbing domain service law office lawyers attorneys-at-law Berlin Munich Cologne Hamburg Hanover online legal counselling media law right to free speech freedom of speech jurist legal sciences jurists Göttingen Göppingen Pirna Nagold Kempten Iserlohn profession Bayreuth Saarbrücken Oder Augsburg Neustadt Coesfeld Elmshorn Riesa Soest Dresden Kassel Dessau Dortmund Rottweil Soltau Rastatt Bautzen Plauen Coburg Würzburg Erfurt Schwerin Neuwied Uelzen Wetzlar Kaiserslautern Papenburg Cuxhaven Wiesmoor Hof Ulm Gronau Wilhelmshaven Nordhausen Saarlouis Wolfsburg Gelsenkirchen Ludwigsburg Altenburg Villingen Schwenningen Schweinfurt Offenburg Memmingen Halberstadt Leck Schwandorf Wittenberg Neunkirchen Montabaur Aschaffenburg Waiblingen Bielefeld Rosenheim Karlsruhe Emsdetten Ingolstadt; profession occuptation Attendorn Paderborn Offenbach lawyer design trademark search Hildesheim Reutlingen Pfarrkirchen Sangerhausen Merseburg Deggendorf Heidelberg Ludwigshafen Ravensburg Regensburg Baltic seaside resort steamer boat steamboat Helmstedt designer Darmstadt translator Traunstein Dannenberg Wuppertal Neuruppin Kreuznach Pforzheim Salzgitter outwork Neubrandenburg Annaberg Hanau Donauwörth Gera additional income Driburg income Limburg Marburg Korbach Ansbach Meschede Zwickau Landshut Stade Heide Landau Verden Oldesloe Hagen Hameln Aalen Ahlen attoney-law-at Wesel Essen Mayen Krefeld Herford outplacement Bergisch Gladbach tradmark branding name Vechta profession Bochum Oschatz Gotha Freiburg Balingen Solingen Freising profession Düsseldorf Weilheim Suhl trademark application Pirmasens Recklinghausen Hamm Nienburg Mannheim Stendal Göttingen Göppingen Pirna Nagold Kempten Iserlohn Bayreuth Saarbrücken Augsburg Neustadt Coesfeld Elmshorn Riesa Soest Dresden Kassel Dessau Lizenz distribution Marketing Dortmund Rottweil Soltau Rastatt Bautzen Plauen Coburg Würzburg Erfurt Schwerin Neuwied Uelzen Wetzlar Kaiserslautern Giessen Kanzlei Schleissheim Tauberbischofsheim Hersfeld Halle Neumünster Gronau Köln Cologne products Hamburg Kiel Flensburg Cuxhaven Lübeck Bremerhaven Leer Emden Barock Oldenburg Meppen Lingen Papenburg Aurich Wiesmoor Nordhorn Bonn Duisburg Oberhausen Bottrop München Berlin Stuttgart Frankfurt Nuremberg Hanover Oeynhausen Leipzig Rostock attorneys-at-law regional Osnabrück Marketing partner programme Lörrach Weil Euro Internet Partner programme Wellness part-time work additional earnings jobs Hamburg München Berlin Stuttgart Kiel loan employment Lübeck Bremen Leipzig Rostock Aachen Attendorn Driburg Heilbronn Bamberg Jena Brunswick Celle Lüneburg Dannenberg Chemnitz Cottbus Detmold Eberswalde Emsdetten Flensburg Niebüll Fulda Goslar Ingolstadt Koblenz Konstanz Lingen Meppen Magdeburg Mainz Neustadt main profession regular occupation Gronau Nordhorn Oldenburg Ostseebad Passau Potsdam Salzgitter Soltau Trier Wiesbaden Wolfsburg Oldesloe Elmshorn Flensburg Hamburg Heide Kiel Lübeck setting up in business Neubrandenburg Neumünster Rostock Gründer Schwerin Stralsund Braunschweig Brunswick Bremen Bremerhaven Celle Emden Grenzach-Wyhlen Göttingen Goslar Hannover Helmstedt Hildesheim Leer Lüneburg Weil Nienburg Nordhorn Oldenburg Osnabrück Stade Uelzen Vechta Verden Wilhelmshaven Cottbus Eberswalde Frankfurt/Oder Neuruppin law Potsdam Altenburg Dessau Erfurt Gera Gotha Halberstadt Halle Jena law Grenzach-Wyhlen Magdeburg Merseburg Nordhausen Sangerhausen Stendal Suhl Wittenberg Hersfeld legal advice Darmstadt Frankfurt Fulda Gießen Hanau Kassel Korbach Limburg Marburg Offenbach Wetzlar Wiesbaden Aachen legal Ahlen Bielefeld Barock Bergisch Bochum Bonn Brühl Coesfeld Detmold Dortmund Düren Düsseldorf Duisburg Essen Gelsenkirchen lawyer economic law trademark search attorney-at-law

 

with kind assistance of: www.english.bwlh.de german lawyer germany attorney patent attorney at law hannover trade mark hanover law rights court law suit www.trademark-lawyers.de trademark lawyer trade mark attorney agent service mark application www.attorney-trademark.de trademark application www.trademark-agents.de trademark agents trademark agent germany german europe european trademark agent www.trademarkworld.de trademark world scan search www.home.t-online.de/home/michael.horak/index.htm german lawyer www.web.de/614693/ attorney hannover lawyer germany hanover unfair competition lawyer www.healthlawyer.de food attorney food law pharma lawyer www.english.ipde.de intellectual property lawyer ip attorney patent attorney at law germany information technology lawyer www.patent-filer.com file patent application in germany europe and pct patent application representative german www.tm-conqueror.com trademark representative trade mark application in europe german trademark attorney www.ipblog.de intellectual property law blog www.copylawyers.com copyright law copyright lawyers protect copyright license law music law attorney

 

2 print | < save | ï back | + enquiry


© 1998-2007 Attorney at law Michael Horak· Roscherstrasse 12 · 30161 Hannover · Germany
Fon: 0.511.590910.20
· Fax: 0.511.590910.55 · mailto:horak@iprecht.de