15
The Accessibility Reinforcement Act
Digital participation and inclusion
What is the Accessibility Improvement Act (BFSG) about?
The Accessibility Act (BFG) is a German law implementing the EU Directive on accessibility requirements for products and services (European Accessibility Act). The aim is to improve the participation of people with disabilities in digital and public life.
It obliges companies to offer certain products and services without barriers from June 28, 2025- especially in the digital sector.
The BFG is intended to ensure that people with disabilities have equal access to certain products and services. It obliges providers to take accessibility into account when designing and providing products and services, particularly websites and mobile apps as well as e-commerce offers (online stores)
The BFG also applies to certain hardware products - in particular those with user interfaces or in connection with digital services. For example, smartphones, tablets and computer e-book readers are affected. However, it also affects self-service terminals such as ATMs, ticket machines or check-in terminals, as well as payment terminals. These must be designed in such a way that they can also be operated by people with various disabilities - e.g. through: Keyboard operability or voice and screen support
What does the BFG aim to achieve?
The Accessibility Act aims to ensure that digital products and services can be used equally by all people, regardless of their disabilities. In concrete terms, this means that disabilities should be compensated for by alternative technological solutions or interfaces.
What needs to be done?
Thecentral measures for accessibility are therefore so-called alternative sensory perception.
This includes, for example, outputting texts as audio for blind or visually impaired people (e.g. using screen readers). Another option is subtitles or sign language videos for deaf people. It is also possible to providevisual feedback instead of acoustic signals for people with hearing impairments (e.g. visual cues instead of warning sounds).
Another customization option is font enlargement or contrast adjustment. This means that content must be scalable without information being lost or navigation becoming unusable. Color adjustments (e.g. high contrast) should also be considered. These help with visual impairments or color blindness.
One important alternative is to use a keyboard instead of a touchscreen . People with motor impairments cannot operate touchscreens or can only do so to a limited extent. Full operability via keyboard or external input devices is therefore essential. Voice control or switch control (for people with severely restricted mobility) can also be taken into consideration.
It is also important that the websites have a clear, comprehensible structure . Structured content also helps with cognitive impairments. Simple language, clear structures and reduced distraction help people with learning or concentration difficulties. Pictograms or symbols can supplement or replace text.
People with disabilities should not have to rely on assistants, but should be able to use digital content independently and in a self-determined way - in the way that works best for them.
What needs to be done?
Companies that fall under the BFG must:
- Make your websites, mobile apps, digital services and certain hardware products accessible - in accordance with the EU standard EN 301 549.
- Publish an accessibility statement.
- Provide a feedback mechanism (e.g. report barrier).
- Regularly check and document the requirements.
What do online store operators in particular need to be aware of?
Online store owners are particularly affected and must:
- Design your web stores to be fully accessible (e.g. keyboard navigation, screen reader compatibility, good contrasts, simple language).
- In addition to normal mouse operation, an online store also offers full keyboard navigation: you can use the tab key to jump through all the operating elements.
- Images of products are provided with alternative texts that can be read aloud by a screen reader, for example.
- Complex CAPTCHAs are not used for the payment process or an accessible alternative is offered (e.g. via audio).
- Integrate payment systems without barriers.
- Make customer information such as product descriptions, prices, delivery conditions, etc. clear, understandable and accessible.
- Be compliant by June 28, 2025 at the latest. It should be noted that there are no transitional periods for online stores.
- Exception: Micro-enterprises with fewer than 10 employees and an annual turnover of less than €2 million (however, this does not apply to products that may fall under the BFSG).
What is the threat of non-implementation?
Failure to do so may result in fines, warnings from competitors or associations, reputational damage and even exclusion from public tenders.
08
The "Robotaxi" and "Cybercab" brands
Tesla and trademark protection
Tesla wanted to protect the name "Robotaxi" as a trademark in the USA - in parallel with the presentation of its autonomous vehicle "Cybercab" in October 2024.
Is "Robotaxi" eligible for protection?
Tesla failed in its attempt to register "Robotaxi" as a trademark. The US Patent and Trademark Office (USPTO) rejected the application as the term was classified as purely descriptive and therefore not sufficiently distinctive.
Tesla now has three months to appeal against this decision.
What has been done about "Cybercab"?
There is currently no registered trademark protection for "Cybercab". Although CEO Elon Musk used the term several times during the presentation of the vehicle in October 2024, according to current information, no corresponding application has been filed with the USPTO.
One possible reason for the delay could be existing trademark rights that already protect similar terms with the prefix "Cyber". Such conflicts can delay or prevent the registration of new trademarks.
Effects on Germany ?
The decision shows that trademark applications can also be refused in Germany if so-called absolute grounds for refusal exist.
These include, in particular, the lack of distinctiveness of descriptive terms. The German Patent and Trade Mark Office (DPMA) carefully examines every application. If a trademark is classified as too general or descriptive, it will be rejected.
How can similar problems be avoided?
German companies should consider the following steps to increase the chances of success of their trademark application:
- Thorough trademark search
Search whether identical or similar trademarks already exist - e.g. via databases such as DPMAregister, EUIPO or WIPO. An examination by a lawyer provides additional security. - Choose distinctive trademarks
Avoid purely descriptive terms. Use fantasy names or creative word combinations to achieve greater protectability. - Correct classification
Use the appropriate classes according to the Nice classification to cover the desired area of protection. - Professional advice
A specialist lawyer for trademark law can help you avoid mistakes and meet all formal requirements.
What applies in other regions or worldwide?
The above information does not only apply to Germany, but is also relevant for other EU countries and international markets - with certain country-specific differences:
European Union
Trade mark applications can also be filed as EU trade marks with the EUIPO. The requirements - in particular the distinctive character - largely correspond to those of the DPMA.
If a trade mark is classified as descriptive, the refusal applies EU-wide.
Worldwide
Similar principles also apply outside the EU. Trademarks must always be distinctive. In countries such as the USA, Canada, Japan, China and Australia, regulations against descriptive terms and to avoid the risk of confusion also apply.
International application via WIPO
A trademark can be registered in many countries simultaneously via the Madrid system (WIPO). However, each national office checks individually whether it is eligible for protection - the local legal particularities must be taken into account.
Careful preparation, creative brand design and professional support can significantly increase the chances of success for trademark applications - both nationally and internationally.
Feel free to contact us if you need support with your brand strategy.
18
DUBAI Chocolate
Legal development of German trademark law?
What is Dubai chocolate and how did the hype start?
Dubai chocolate is a sweet consisting of a milk chocolate shell filled with a mixture of pistachio cream and kadaifi - also known as angel hair. This combination gives the chocolate a special texture and a characteristic taste.
The hype began in December 2023 when food influencer Maria Vehera published a TikTok video in which she tasted this chocolate. The video went viral and achieved over 100 million views. As a result, demand skyrocketed and the chocolate became a sought-after trend product. It was shared millions of times, particularly on platforms such as TikTok and Instagram.
The brand that originally triggered this hype is Fix Dessert Chocolatier from Dubai. The founder, Sarah Hamouda, developed the first version of this chocolate in 2021 during her pregnancy under the name Can't Get Knafeh of It. Initially, it was only sold locally via delivery services such as Deliveroo. The viral TikTok video eventually brought the product to international attention.
Quality and food standards
As its popularity grew, so did the number of imitation products - often from Turkey or Eastern Europe - which led to considerable differences in quality. While some copies use inferior ingredients such as palm oil instead of cocoa butter, the original product from Dubai remains a handmade premium chocolate.
The Fex brand acts as the European importer of Fix Dessert Chocolatier's original Dubai chocolate. Fex emphasizes that all products are produced under government supervision in Dubai in accordance with the HACCP-certified food safety management system. In addition, they have been tested by the independent SGS Institut Fresenius in Germany and rated as flawless.
There are many imitations, and not just of these brands. Consumer advocates warn against untested imitations: In several cases, mold toxins, fat pollutants or falsely declared ingredients have been found in such products. It is recommended to pay attention to the origin, certifications and retailer transparency when buying.
What is the legal issue?
The high demand and limited availability lead to "astronomical" prices: A bar costs between 15 and 30 euros. The reasons for this are the elaborate hand production, high-quality ingredients and the costly air import from Dubai.
At the same time, the name "Dubai chocolate" is causing legal disputes. Several companies sell products under this name that were not manufactured in Dubai. This was seen in some cases as a misleading indication of geographical origin and led to several court cases.
What is the legal situation?
Courts in Germany have a mixed opinion on the use of the term "Dubai chocolate":
- Bochum Regional Court & Cologne Regional Court (sales ban): These courts consider the name to be an indication of geographical origin. If the chocolate is not produced in Dubai, this could mislead consumers. The packaging design - such as the depiction of Dubai's skyline - also played a role in the assessment as misleading.
- Regional Court of Frankfurt am Main (no sales ban): Here, "Dubai" was interpreted as a descriptive term and not as an indication of origin. The fact that the actual origin of the chocolate was clearly stated on the packaging was also decisive.
The Dubai chocolate trend shows how quickly a food product can become popular worldwide through social media. At the same time, the case makes it clear how important legal clarity is when it comes to geographical indications of origin. Legal pitfalls lurk not only in naming and branding, but also in labeling and, of course, food law requirements must be observed.
25
Warning for music use on Instagram
What actually happened?
In recent months, there has been a wave of warnings about the use of copyrighted music on Instagram. Companies, influencers and commercial users who have used music in reels and stories without the appropriate license are being warned. High claims for damages and cease-and-desist declarations are demanded. The song "Pedro" by Jaxomy x Agatino Romero x Raffaella Carrà was particularly affected.
Why do I need license rights?
Music is protected by copyright, and using it without a license can be seen as making it available to the public illegally. Platforms such as Instagram do provide music libraries, but often only for private use. Commercial accounts require explicit licenses in order to use music in a legally compliant manner. Without this permission, there is a risk of warnings, high costs and legal consequences.
What licenses are available for private and commercial users? Instagram distinguishes between two main categories:
- Music library (for private users only):
- Pieces of music are only released for non-commercial use.
- Commercial accounts may not use this music.
- Sound Collection (licensed music for companies):
- Contains music that may be used for commercial purposes.
- Users should check whether the selected music is actually included in the Sound Collection in order to avoid warnings.
How does Instagram define private use and to what extent does this differ from the common legal understanding? Instagram defines private use as the exclusive use of music for personal, non-commercial purposes. This includes posts, reels and stories that are shared without direct or indirect profit. In contrast, the common legal understanding of private use is often narrower: it refers to purely personal, family or private circles without public dissemination. As soon as content on social media platforms is shared with a broad public, this could be legally considered public communication, which requires licensing. This discrepancy between platform guidelines and legal requirements often causes confusion and can lead to warnings.
What is the best way to proceed?
- Check the music source:
- Ensure that the music comes from the Sound Collection and is approved for commercial use.
- If you are unsure, switch to license-free music or alternative music libraries.
- Secure evidence:
- Take screenshots or provide proof of rights of use.
- Save license conditions at the time of use.
- Obtain legal advice:
- Contact a specialized lawyer immediately if you receive a warning letter.
- Do not sign a cease-and-desist declaration without checking it or pay prematurely.
Can a purchased license be removed? Yes, if pieces of music are subsequently removed from the Sound Collection. However, this could prevent a subsequent warning if the use was still licensed at the time of publication. It is therefore advisable to secure proof of the licenses.
What are the legal and financial consequences of unlawful use?
- Warning and cease-and-desist declaration:
- Users are requested to cease use immediately and to sign a legally binding cease-and-desist declaration.
- Claims for damages:
- Often in the form of a "fictitious license fee", which can rise to five-figure sums.
- Reimbursement of legal fees:
- The costs depend on the amount in dispute of the claim and can be considerable.
- Blocking of the Instagram account:
- Instagram can delete content or deactivate the entire account.
- Legal proceedings:
- If a cease-and-desist declaration is not issued, this can lead to an expensive court case.
To avoid warnings and high costs, commercial users should only use music from the Sound Collection or purchase explicit licenses. In the event of a warning, prompt legal advice is essential in order to avoid high claims.
Please contact us if you have any questions.
15
ECJ Gender indication and GDPR
The question of the need to provide customers[1] when purchasing tickets or concluding other contracts, was recently decided by the European Court of Justice (ECJ). The mandatory indication of "Mr." or "Mrs." violates the General Data Protection Regulation (GDPR). This decision not only affects the French SNCF, but also has potential implications for other companies and online commerce.
What is it about?
At the heart of the legal dispute is the principle of data minimization, which is enshrined in the GDPR. The Mousse association had complained to the French data protection authority CNIL about SNCF Connect, as customers had to choose between "Monsieur" or "Madame" when purchasing tickets online. The ECJ ruled that this practice was unlawful, as specifying the form of address is neither necessary for the performance of the contract nor for business communication. A gender-neutral form of address, for example "Hello [first name] [surname]", is a practicable alternative.
What is the legal situation?
According to the ECJ, the mandatory request for the salutation violates the principle of data minimization. The GDPR only permits the collection of personal data if it is objectively essential for the performance of the contract. A gender-specific form of address is not necessary for the purchase and use of a ticket. Furthermore, the legitimate interests of companies, such as personalized communication, should not outweigh the rights and freedoms of customers. The decision therefore strengthens the right to informational self-determination.
What impact does this have?
The ECJ's decision has far-reaching consequences:
- For companies: Online retailers and service providers should either refrain from requesting the form of address or offer gender-neutral options. In this way, they can avoid discrimination and minimize legal risks.
- For the rail industry: National courts, including in Germany, must take the ECJ case law into account in similar cases. Deutsche Bahn has already introduced a gender-neutral form of address, which reduces the risk of discrimination.
- For consumers: Customers can demand that companies refrain from unnecessary data collection and assert their rights to data protection and equal treatment.
The ECJ's decision is a step towards more data protection and equal rights, with a focus on avoiding unnecessary discrimination.
Contact us if you have any questions
[1] For reasons of easier readability, the wording is not gender-specific.
13
The Birkenstock sandal is a work of art
It is undisputed that Birkenstock sandals are something special. However, the company is now taking legal action to have its "classics" recognized as a work of art by the Federal Court of Justice. This is not about vanity; the legal classification has tangible economic consequences.
Why does Birkenstock choose this path?
Birkenstock is seeking copyright protection for its sandals in order to protect the iconic design from imitations. As the company has not yet applied for protection under trademark or design law, copyright is the last option for achieving long-term protection. Previous attempts to secure protection via competition law or patent law have been unsuccessful. With copyright, the protection of models such as "Arizona", "Madrid", "Gizeh" and "Boston" could be maintained for up to 70 years after the death of the creator. The sandal, which has evolved from a slipper to a status symbol, should thus be recognized as a work of art.
What is the legal situation?
In principle, copyright protection of design objects is possible if they constitute a "personal intellectual creation". In the case of everyday objects such as sandals, however, there are stricter requirements for artistic design. A formal entry in a register is not required, but the manufacturer bringing the action must comprehensively demonstrate that the design is worthy of protection. Unlike design law, which was often used for fashionable objects in the past, copyright law offers much more comprehensive and long-term protection. In other countries, such as the Netherlands or France, shoes and sandals have already been successfully protected as works of art.
How have courts ruled so far?
The lower courts had different opinions. The Regional Court of Cologne recognized the Birkenstock models as works of applied art and affirmed protection. The Cologne Higher Regional Court, on the other hand, dismissed the claim and argued that the artistic achievement of the sandals was not sufficient. The court found that the functional aspect dominated in the case of applied art and that creative freedom was not used beyond technical constraints. The Federal Court of Justice provisionally confirmed that the Higher Regional Court had applied the correct standards, but emphasized that the definition of art should not be dependent on commercial objectives.
What will the BGH do?
The Federal Court of Justice is leaning towards the opinion of the Cologne Higher Regional Court that the sandals do not have a sufficient "level of design" to be protected as works of applied art. However, the final decision is still pending and is expected in the coming weeks. If the BGH rejects the claim, copyright protection for the Birkenstock sandals would finally be off the table. However, recognition could have far-reaching consequences for the protection of design objects and fashion items in Germany. It would open the door for similar cases and strengthen the importance of copyright in the fashion industry in the long term.
What does the decision for Birkenstock mean?
If the Federal Court of Justice (BGH) were to recognize copyright protection for the Birkenstock sandals, this would have far-reaching consequences for the company. Such protection would enable Birkenstock to take more effective action against imitations and preserve the exclusivity of its designs. This could strengthen its market position and further increase the value of the brand. In addition, copyright protection would apply for up to 70 years after the death of the designer, which represents a long-term advantage.
However, the BGH's assessment to date indicates that the required "level of design" for copyright protection may not be achieved. If the BGH rejects the claim, Birkenstock would still have the option of using design law or other protective mechanisms to protect its products from being copied. However, this could be associated with shorter protection periods and possibly higher hurdles.
The decision of the BGH will therefore not only be important for Birkenstock, but also for the entire design and fashion industry, as it could provide clarity on the requirements for copyright protection of utility objects.
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09
EMOJIS in legal traffic - watch out for a smiley face
The use of emojis in communication is also becoming increasingly important in legal transactions. The ruling by the Munich Higher Regional Court (OLG) on November 11, 2024 (case no. 19 U 200/24 e) shows how emojis can be assessed when making declarations of intent. This raises the question of whether an emoji can constitute a legally binding consent or expression of intent.
The use of emojis can be an expression of intent relevant to legal transactions.
In its ruling, the Munich Higher Regional Court dealt in detail with the legal significance of emojis. Emojis can support or replace declarations of intent, provided that the intention to be legally bound is clearly recognizable. The decisive factor is how a reasonable recipient would understand the message, taking into account the circumstances.
What has happened?
In the underlying case, two parties were in dispute over a purchase contract for a luxury vehicle, the delivery of which was delayed. Both parties used emojis in WhatsApp communication. The focus was particularly on a "thumbs up" emoji (👍) and a "grinning face" emoji (😁). The seller argued that the buyer had agreed to an extension of the delivery date with these emojis.
The buyer disputed this interpretation and later withdrew from the contract due to non-delivery. This led to a claim for repayment of the down payment and a counterclaim for damages.
How does the court assess the use of emojis?
The Munich Higher Regional Court came to the conclusion that emojis can generally be regarded as an expression of declarations of intent. However, their legal effect depends on the context. The following aspects were emphasized in this case:
- Meaning of the emojis:
- The "thumbs up" emoji (👍) usually signals approval or agreement.
- The "grinning face" emoji (😁) can express joy or positive feelings, but does not convey clear approval.
- Context of communication:
- The "thumbs up" emoji was used in a conversation that was about ordering the vehicle and not about the delivery date. Therefore, no consent to an extension of the delivery date could be inferred.
- The "grinning face" emoji was used in a general inquiry from the buyer about the delivery time and did not contain any recognizable intention to be legally binding.
- Recipient horizon:
- The decisive factor is how a reasonable recipient would understand the message, taking into account good faith (Sections 133, 157 BGB).
- The specific context and use of emojis in digital communication must be taken into account, including cultural and individual differences in interpretation.
The court found that there was no binding declaration of intent on the part of the buyer. The withdrawal from the contract was therefore effective.
Emojis and the legal written form according to § 127 BGB ?
Another aspect of the ruling was the question of whether emojis can fulfill the statutory or contractually agreed written form requirement pursuant to Section 127 (2) BGB. The Munich Higher Regional Court clarified that electronic transmissions such as WhatsApp messages can generally fulfill the written form requirements if the messages can be permanently stored and reproduced.
However, emojis alone are not sufficient to replace the written form, as they are mostly used to supplement or underline text. Their legal effect depends on the entirety of the transmitted message and the recognizable intention to be legally binding. The decisive factor is that the declarations are made in a form that is verifiable and clearly attributable, which is not always guaranteed with emojis alone.
The ruling shows that emojis in legal transactions can certainly be interpreted as an expression of an intention to be legally bound, but their interpretation always depends on the individual case. The following applies to companies and private individuals: emojis should be used with caution in a business context, as they may constitute legally binding declarations, especially if there are legal requirements for the written form or legal obligations.
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15
GEMA vs ChatGPT
GEMA is the first collecting society worldwide to file a landmark lawsuit against OpenAI, the company behind the AI-supported language model ChatGPT. The focus is on the unlicensed use of protected song lyrics from the repertoire of around 95,000 GEMA members, including well-known artists such as Reinhard Mey and Kristina Bach. The key question is whether the training and playback by generative AI systems constitutes copyright-relevant use. The lawsuit sends a clear signal: copyrights must also be respected in the age of AI.
What has happened?
On request, ChatGPT reproduces song lyrics that were apparently part of the AI's training material. However, OpenAI has neither acquired licenses nor remunerated the authors, as is required under Section 19a UrhG for making protected works available to the public. While other providers make license payments, GEMA believes that OpenAI is systematically acting without the necessary legal basis. A lawsuit has therefore been filed with the Munich Regional Court to stop these practices and to obtain a precedent-setting ruling.
Who is GEMA?
GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte) is one of the largest collecting societies in the world. Its central task is to manage and enforce the copyrights of music creators. It represents around 95,000 members, including composers, lyricists and music publishers, as well as over two million rights holders from all over the world.
GEMA ensures that the creative services of its members are remunerated for performances, broadcasts, reproductions and, more recently, for use by AI systems. This is done via licensing models that legally secure the use of copyrighted works and ensure fair remuneration for creative professionals. With the introduction of a special licensing model for generative AI, GEMA has taken an important step towards protecting the rights and interests of its members in this area too.
Is the use covered by text and data mining?
According to Section 44b UrhG, the text and data mining exception allows the automated evaluation of copyrighted content for analysis purposes. Whether this regulation is also applicable to the training of generative AI models remains controversial. Recent court rulings, such as by Hamburg District Court, suggest that this is possible in principle - but only if there is no express reservation of use by the copyright holder. GEMA has clearly communicated such reservations of use for its members, which could play a decisive role in the proceedings.
Economic impact of the lawsuit?
The lawsuit has far-reaching economic implications for both the AI sector and the creative industry. OpenAI, with annual revenues of over 2 billion dollars, could be significantly burdened by license payments and possible claims for damages. At the same time, the lawsuit signals that the use of protected content without remuneration for authors is not sustainable in the long term.
For the music industry, the process offers an opportunity to establish fair participation models for AI applications. GEMA has already developed a licensing model designed to ensure fair remuneration for music creators when training and generating new AI content. This could also force other AI providers to enter into similar agreements.
GEMA's lawsuit against OpenAI marks a turning point in the tension between technological innovation and copyright protection. While the courts have to clarify whether the limitation provisions of copyright law apply, GEMA clearly shows that the creative input of artists is not a free raw material for AI models. The decision could not only redefine the way generative AI is handled, but also have a lasting impact on the economic framework conditions for the entire creative industry.
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