The defendant acted at least negligently, as she performed the applicant's name under the heading "Employee", without having obtained the consent thereto.
The damage can, as in the case of infringement of a copyright- be calculated or industrial property right like a license fee (vgl. BGH 60, 206).
LG Düsseldorf 2a O 235/12 from 10.04.2013 – Damages for the Legal Attribution
The defendant is sentenced, an den klager 1.660,00 Euros plus interest in the amount of 5 Percentage points above the base rate from 660,00 Euro since 23.7.2012 and from 1.000,00 Euro since 5.10.2012 to pay.
The defendant is sentenced more, an den klager 177,40 Euro pre-trial costs plus interest in the amount of 5 Percentage points above the respective base rate since 5.10.2012 to pay.
Moreover, the application is dismissed.
The costs of the lawsuit the plaintiff bears.
This judgment is for the plaintiff against security in the amount of 110 % of the total amount recovered shall be provisionally enforceable. The plaintiff may enforce against security in the amount of 110 % each turn of the amount to be recovered, if the defendant does not pay before the enforcement security of the same amount.
1Facts:
2The parties disagree as to damages.
3The plaintiff is the author of various technical papers and speakers and put the defendant, which publishes the journal "XXX", in 2006 appropriate fee various manuscripts available. Since then up to the year 2012 appeared the applicant's name in the imprint of the magazine published by the defendant "XXX" under the heading "Employee" (Equipment 3 to 9).
4By letter of 11.7.2012 (Plant 10) warned the plaintiff from the defendant and asked them to deliver an imitator, the defendant by letter dated 23.7.2012 (Plant 11) gave. The applicant's entitlement to compensation and reimbursement, however, they refused from that letter.
5However, the applicant's name was then still under the heading "employee" named in the imprint published before that date online editions of 'XXX'.
6The plaintiff alleges, on his nomination in the imprint he was the first time a Google query in 2012 become aware. He is now demanding damages from the defendant in the amount of 12.000,00 €, resulting from loss of royalties from 2.000,00 Composed euros per year for six years, in which the defendant had used his name without permission in Contacts. Furthermore, the plaintiff claimed 5.000,00 Euro penalty, because the defendant despite the declaration of continued use his name on their website. The applicant considers, there lies both a violation of the right to a name, as well as a breach of competition law before, misleading because the defendant without his consent and used the name, to increase in this way the reputation of their magazine.
7The applicant claims,
8order the defendant costs and provisionally enforceable, to him 17.000,00 Euros plus interest in the amount of 5 Percentage points above the base rate of an amount of 12.000,00 Euro since 23. July 2012 and an amount of 5.000,00 Euro since lis pendens and 522,40 € extrajudicial costs plus interest in the amount of 5 To pay percentage points above the base rate since pendens.
9The defendant claims,
10 dismiss the action.
11The defendant asserts, the applicant was in 2006 myself have asked for a picture and the imprint for six years had no objection, especially since he get sent to the magazine since that time, monthly charge by post. Also, there could be no interference in assets components of personal rights, because the applicant's name will not be used for advertising purposes, but rather have the benefit of plaintiffs, to be named in the imprint. In addition, it raises the statute of limitations.
12For further details of the property,- and the dispute, reference is made to the pleadings exchanged between the parties and the annexes.
13Reasons:
14The claim is justified only to a small extent.
15 I.
16The plaintiff is awarded the extent a claim against the defendant.
17Moreover, this claim is unfounded.
18 1.
19 a)
20The plaintiff has a claim against the defendant for payment of 660,00 Euros in damages under § § 823 I, 12 BGB.
21The defendant has violated the naming rights of the plaintiff, she performed this by five and a half years under the heading "employee" in their Contacts.
22The right name is an other right within the meaning of § 823 I BGB (vgl. Palandt / SPRAY, § 823 BGB, Rdn. 14 m.w.N.). The naming rights of the plaintiff has been violated in the present case. A violation of the right to a name is a use of the name ahead, that gives rise to a risk of confusion assignment (vgl. BGH 91, 117/20; 126, 208/15). This is given, when the person with facilities, Goods or products is associated, with whom he has nothing to do (vgl. Palandt / Ellenberger, § 12 BGB, Rdn. 23). The assignment confusion arises then it, that the incorrect impression is given, name of carrier had agreed to the use of his name (vgl. BGH, 126, 208/16).
23This meaning, however, is the mere Attribution. This is, even if it is related to incorrect factual statements, no under § 12 BGB falling act of infringement (vgl. OLG Dusseldorf, NJW-RR 1990, 293).
24In the present case, however, is not a mere mention of a name, Rather, the defendant has used the applicant's name in the form, that the impression is created, this was agreed to its inclusion in the Legal. It is awakened by the mention of the name of the plaintiff under the "employee" of the appearance, stand this as a permanent business relationship with the defendant in such, that he is constantly and regularly worked for the magazine "XXX", which, however, does not apply.
25Something else arises not from the defendant's argument, the applicant was in 2006 explicitly asked to record the imprint and also had no objections during the following years, especially since he get sent home monthly magazine. Of evidence for this was not necessary, because already the talk of the defendant, the applicant was in 2006 asked to record the imprint, is unsubstantiated.
26Firstly, such a request of the plaintiff would have been then expressed at a time, in which he has actually published articles in the journal. From this it is not inevitable to conclude, that he would have been beyond agree with his entry in the Contacts.
27Second, the defendant would have had to demonstrate more accurate, exactly when and where the plaintiff is said to have uttered the context in which this request. In addition, that the mention of the managing director Mr A. is not suitable as a witness taking of evidence.
28Even if the plaintiff would have received the rest, the monthly magazine home, does not follow necessarily, that he has taken note of the imprint. The claim in this respect the defendant is accordingly not relevant to the decision.
29The violation of the right to a name of the plaintiff was also guilty of, § 276 BGB. The defendant acted at least negligently, as she performed the applicant's name under the heading "Employee", without having obtained the consent thereto.
30The damage can, as in the case of infringement of a copyright- be calculated or industrial property right like a license fee (vgl. BGH 60, 206).
31In a case such as this, the license amount is taking full account of all the circumstances of the case pursuant to § 287 Appreciate ZPO free conviction (vgl. BGH, Wheat 2006, 143, 1457146 – Catwalk; BGH, Wheat 2010, 239 – BTK, Tz. 21). The type and extent of the estimates were furnished by the claimant only minor requirements must be made and it can be to take into account, that the judge's estimate may not match the reality (vgl. BGH, Wheat 2009, 660 - Resellervertrag, Tz. 16).
32Taking into account these principles, the facts alleged by the applicant are sufficient for connecting a damage estimate in accordance with § 287 Code of Civil Procedure of. However, the damage of the plaintiff after the Board's view is 660,00 Sufficiently sized euro. In that regard, the Board is, because it is a monthly magazine, from 10,00 Euro license fee per month, therefore 120,00 Euros per year and 660,00 Assumed euros for five and a half years, because the plaintiff as alleged not more than six, but was actually done about five and a half years in the masthead of the magazine as a staff.
33The applicant has not put forward any facts, moreover,, could justify a higher license fee. In particular, he has not shown, that he is known by his name, that credit in the masthead of the magazine "XXX" this gives a significant market advantage, which would compensate the plaintiff by a higher license fee. Thereto is not altered, that the defendant journal 25.000 to 34.0000 Distributed copies and they also published on the Internet.
34In addition, that the plaintiff for four posts in the journal a total amount of 682,08 EUR has received, including the amount of damages claimed from him because of the attribution of the imprint 166,00 EUR per issue in any relationship is.
35It also has to take into account, that the applicant's name is not in a prominent position in the magazine, but appears under another name in a list of the legal notice section and is already questionable, how great the visibility is use this name at all.
36The interest of the applicant to his name right should be done by the awarded damages under these circumstances satisfy, especially since he has actually published some articles in the journal in question and so far it does not completely lack a reference.
37The claim is not barred.
38Claims for damages in tort are subject to regular limitation period of three years pursuant to § 195 BGB. For the beginning of the period of limitation shall be based on the date of obtaining knowledge. The applicant has submitted, only in the year 2012 to find out about it, that it is listed in the masthead of the magazine as a staff, as if he had entered his name in the search engine "Google". Unless the defendant has argued against this, the applicant was in 2006 even applied to join the imprint and hand had no objections in the following years, so this talk is already not sufficiently substantiated. In the foregoing regard, reference is made.
39 b)
40A claim under § 9 S. 1, 5 I 2 No.. 3 UWG differs, however, from, there is no competitive relationship between the parties. With the defendant, it is not a competitor of the plaintiff, is a freelance author and speaker, but to a publisher.
41 2.
42In addition, the plaintiff has a claim against the defendant to a penalty of 1.000,00 Euros from the defendant on the 23.7.2012 issued cease and desist.
43Here, the defendant has against the plaintiff committed, to refrain on pain of a penalty, give prominence to the plaintiff in the imprint of the journal "XXX" as an employee. However, the applicant appeared after submission of the declaration of common ground yet still called in the old issues of the magazine online in the imprint name as an employee. Although these online editions are from the time before the submission of the declaration of, however, this represents a violation of the cease and desist. Finally, these issues were still online at any time, so that it was incumbent on the defendant would have, to remove the applicant's name. In contrast to the previously published print editions so far technically this would have been possible.
44The Chamber considers it a penalty of 1.000,00 Euro as appropriate, especially since the offense was indeed negligent, the fault is not to be classified as very serious. Thus, the defendant has taken the applicant's name at least for the future of the imprint, which clearly, that it was generally located on a declaration of compliance with the.
45 3.
46The claim for payment pretrial legal costs consists of § 280 I BGB, but only in the amount of 172,90 € (1,3 Annual fee of a dispute of 1.660,00 €). The costs incurred package has not explicitly made, the applicant claims.
47Be added 4,50 Euros for obtaining the certificate of registration, to the applicant from also § 280 I BGB entitled.
48 4.
49The interest claim follows from § § 286, 288 BGB.
50 5.
51In addition, the suit was dismissed.
52 II.
53In addition to the procedural decisions follow from § § 92 Abs. 2 No.. 1, 708 No.. 11, 711, 709 ZPO.
54Dispute: 17.000,00 €