Category Archives: Germany

Leading decision/Grundsatzentscheidung

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It’s been widely reported today that Haribo (which markets a sweet called Goldbär – gold bear) won in a case against Lindt Sprüngli, which has been introducing a gold-foil-wrapped bear for Christmas. The court in Cologne held that people would refer to the Lindt product as ‘gold bear’, thus diluting the mark into which Haribo has pumped huge amounts of money in advertising. (No, commenters, the court did not say that people could not tell the difference between a ‘gummy bear’ and a chocolate bear). Die Welt (German):

Denn die meisten Verbraucher werden laut Gericht den “Lindt Teddy” naheliegenderweise und ungezwungen als “Goldbären” bezeichnen – und eben nicht als Teddy”, “goldene Bärenfigur”, “goldfoliierten Bär” oder als “goldfarbenen Schokoladenteddybär”.

Haribo konnte auf die Umfrage eines unabhängigen Meinungsforschungsinstituts verweisen: 95 Prozent der Verbraucher würden die traditionsreiche Wort-Bildmarke “Goldbär” kennen.

The Local (English):

But the judges said that shoppers were likely to refer to the Lindt product as a “Gold Bear” because of its appearance and thus dilute the Haribo brand.

“Most consumers would not use descriptions such as ‘golden bear figure’, ‘gold foil-wrapped bear’ or ‘gold-coloured chocolate teddy bear’… but rather the closest description, particularly considering how well-known the other brand is: Gold Bear,” it said in a statement.

The decision isn’t final – Lindt will be appealing. It was commented that this particular point of law – whether a word mark can be diluted by the appearance of another mark – has not been decided by the highest courts (höchstrichterlich), or that there has not been a fundamental decision (Grundsatzentscheidung).

Die Welt:

Eine höchstrichterliche Rechtssprechung gebe es zu einer solchen Kollision nämlich noch nicht, erklärte das Kölner Landgericht.

The Local:

“What is special about the case is that there has been no high court ruling on the issue of a collision between a brand name and a three-dimensional product design,” it said.

That is very American. It’s common in the USA to refer to the Supreme Court as the ‘high court’.

I’m not sure if the highest court here would be the Bundesgerichtshof or the Bundespatentgericht. At all events, to call such a decision a ‘landmark decision’ would not be correct. What is meant is a binding decision – not that Germany has an official system of precedent, but in practice it seems like that. A landmark decision is one that makes the news in a big way.

LATER NOTE: Guardian article – with mug shots of the two bears.

The Lost German Slave Girl/Eine Deutsche als Sklavin in Louisiana?

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Here is yet another gratuitous book report.

The Lost German Slave Girl. The Extraordinary True Story of Sally Miller and Her Fight for Freedom in Old New Orleans, by John Bailey, Atlantic Monthly Press 2003

This book was a present from my friend and fellow-translator Karen in Denver (thanks, Karen!). I read it quite a few weeks ago, so my report is rather vague now.

John Bailey is an Australian lawyer who has now turned to writing, and he discovered this story when he was researching the details of law relating to slavery in Louisiana. Sally Miller was the ‘lost German slave girl’, who won a case freeing her from slavery because a person who was Caucasian could not be a slave. It’s a fascinating story and it throws some light on the situation of slaves who could not be freed from slavery. There’s also a fair amount about the circumstances in which the Müller family from the Alsace emigrated to the USA, following years of pillaging by French troops, bad harvests and ice in summer (apparently resulting from volcanic eruptions in the West Indies, the Philippines and Indonesia from 1813-1816 – so tonight I will be watching the arte documentary on ‘The year without a summer’).

From an interview with John Bailey:

My plans unraveled, when one day, in the quiet corner of a law library on a university campus in Louisiana, as I struggled to bring some semblance of order to my unruly and ever expanding manuscript, I opened a volume of the Louisiana law reports for 1845. There I met Sally Miller, the Lost German Slave Girl. I was immediately enthralled by her story. By the end of the day, I had shoved my notes on lawyers, judges and politicians into my bag, and opening a fresh page in my diary, had began to jot down ideas for an entirely different project – this one, on the saga of Sally Miller’s bid for freedom.

One feature of the book is that while it cloaks the story in mystery – the witnesses in the trial are obviously long dead – at the same time it often knows exactly what the weather was like or what the main characters were thinking. This is part of the genre ‘bringing history to life’, I think. For a long time I was convinced that I was never going to know anything more about the truth or falsity of the story, but in fact more information was revealed at the end, which made the end of the book more satisfying than I had expected.

A bit of research on the Internet revealed that the story has been told before. Curiously, there is a 2007 American book on the subject, which looks similar to Bailey’s: The two lives of Sally Miller: a Case of Mistaken Racial Identity in Antebellum New Orleans, by Carol Wilson. You can read quite a bit of this on Google Books.

The Guardian on Germany/Die Guardian zu Deutschland

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A bit late this link, but this week the Guardian has started examining some European countries, starting with Germany – see neweurope. More detail here.

There seem to be more articles every day. I noted in particular some articles on German literature, with more suggestions in the comments (Join the new World literature tour to Germany). Then one on the life of a German family:

Back home, Gerrit opens some lovely Hassaröder Pils beer, while Katleen, in a rare lapse of taste, drinks Beck’s. They put on a CD by a German R&B singer called Joy Denalane. To my ears, it sounds as authentically uninteresting as its English-language counterpartsz. “For me, one of the great things about the past year is that German-language music is becoming popular,” says Gerrit. Fair enough, but the current German top 10 is all in English, even when the songs are sung by Germans.

On the kitchen shelves, there’s a nostalgic East German cookbook, teeming with pictures of men in feather cuts at the wheels of Trabants, and recipes so stolid that subsisting on them would make you look more like Helmut Kohl than a member of the DDR’s gymnastic team.

There’s a hisory of German cinema in clips (including a very long clip, nearly two hours long, from Leni Riefenstahl’s ‘Olympia’ – presumably the whole film – Jesse Owens in first heat at just after 38 mins.), on the war against anglicisms
, on the piecing together of shredded Stasi documents in Zirndorf, and an at-a-glance guide to Germany. And a lot more.

Coming soon, for one week each: France, Spain and Poland.

First German court hearing in English/Erste Verhandlung auf Englisch (LG Bonn)

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As reported in an earlier entry, hearings in English are now possible at three international commercial chambers in Aachen, Cologne and Bonn. Both parties have to agree to waive the use of an interpreter. The first such hearing took place on May 10 at the Bonn Regional Court (Landgericht). There is a brief report in German in the Kölnische Rundschau, but it does not go into detail, and indeed, the reporter was apparently unable to assess the effectiveness of the language:

Premiere in Bonn: “Good afternoon”, begrüßte Manfred Kaufmann, Vorsitzender der neu eingerichteten 19. Zivilkammer des Bonner Landgerichts, die Parteien: Dann erläuterte der Handelsrichter in englischer Sprache die juristische Problematik der vorliegenden Klage: Eine Aktiengesellschaft belgischen Rechts wirft darin einem Bonner Unternehmen Vertragsbruch vor. Worum es im Detail ging, blieb dem Prozessbeobachter – im Handelsenglisch nicht geübt – im Verborgenen.

However, a colleague, Martina Niessen, Diplom-Dolmetscherin, has kindly reported to translators’ mailing lists on the hearing, which she attended.

To summarize: the courtroom was rather small, seating scarcely more than twenty, but there were SAT1 TV cameras there and a reporter and photographer. The three judges’ wives were reportedly all native speakers of English. Both parties had German lawyers, and the plaintiff also had a Belgian lawyer.

None of the parties was a native speaker of English. The case related to a Belgian company which supplied the Cuban government with electronic components, and a German company which supplied such components to the Belgian company. The German company has been taken over by a U.S. corporation, and so problems have been created by the U.S. embargo against Cuba. The court wanted the parties to reach a compromise, in part because a large amount of Belgian documents in French and Cuban documents in Spanish would have needed to be translated (so much for simplifying matters by using English as the court language!).

There were some language problems. For example, it was necessary to spell names, and the judges were not used to spelling in English. The words plaintiff and defendant were confused several times. Our colleague had the impression that they would have liked to express themselves in German.

The two German lawyers called for a Grundurteil. This is a decision as to whether the plaintiff’s claim has merit, literally a ‘basic judgment’, a kind of interim judgment. I haven’t got my library with me, but I gather Dietl-Lorenz does not contain a term (German judges often consult this dictionary and if it makes a suggestion they are usually happy with it). Nobody knew what the English for Grundurteil was, so they used the term Grundurteil in German – probably the best thing they could do. I would have consulted my English translation of the Zivilprozessordnung for this blog entry, and indeed this is a reference the courts might consider having at hand, but none of these dictionaries or translations are authorities in themselves: the user needs to have the background knowledge to decide which, if any, suggested terminology works.

The record of the proceedings was dictated in German by the presiding judge. The Grundurteil is to be pronounced on 31 May. The hearing was 90 minutes long. One of the associate judges (Beisitzer) spoke excellent English, apparently.

The judges had a tendency to start complex sentences which they could not finish.

Other language problems: the Federal Court of Justice (Bundesgerichtshof, BGH) was referred to as ‘he’.
Kritik was translated as critic, not criticism.
Gewinn was translated as gain, not profit.
Power of attorney had to be explained to the Belgian.

It does seem odd that – obviously – German law is always involved. It is difficult enough to talk about legal issues in a foreign language, but it is even harder to be constantly translating German law into a foreign language. And this is precisely what is not practised if you do an LL.M. in the USA or UK. It’s something you need to work on.

Pronouncing the English alphabet: I used to get students to write the letters in groups according to the vowel sound, like this (this presumes the British pronunciation of Z as zed – if it is pronounced zee, it goes in the second line instead:

A H J K
B C D E G P T V
F L M N S X Z
I Y
O
Q U W
R

Many thanks to Martina for this report. I’d love to attend one of these hearings!

Lawyers’ costs compared/Anwaltskosten England und Deutschland

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The Jackson Report on the reform of civil litigation costs in the UK was published in January 2010.

The final report and the two volumes of the preliminary report can be downloaded here.

Interestingly, at the end of the second volume of the preliminary report there are descriptions of the system in other countries, for instance Chapter 55: Germany, pp. 555 to 565.

1.1 The German rules of civil procedure contemplate cost shifting, albeit according to well-defined scales for recovery. The effect may be that a successful litigant is entitled to recover a smaller proportion of its actual fees than would be recoverable in England and Wales.
1.2 The German system permits the use of contingency fees only in limited circumstances, namely where a claimant does not have the means to retain lawyers for his case. Legal aid is available in certain civil cases.
1.3 In Germany, civil litigation is managed by the court so that it controls the proceedings and the evidence that is brought before it. One method by which the court does this is to appoint experts to assist the court on relevant factual issues, rather than leaving it to the parties to adduce their own expert evidence.

Useful footnotes too:

According to German Civil Procedure Code section 3(1), the value of the dispute is to be determined by the court in its “absolute discretion”. I am advised, however, by senior German judges that in practice no discretion is involved when the litigation concerns quantified or readily quantifiable claims.

Interesting reading and good for vocabulary too.

Returning to the UK, the shadow on the horizon is LPO – Legal Process Outsourcing, which will permit some work to be outsourced, for instance to India.

(Via the euleta list at Yahoo Groups).