Heraldic statute

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Coats of arms statutes are issued by German municipalities and districts with the aim of regulating the representation, use and management of municipal coats of arms ( official coats of arms ).

Legal basis of the constitutional authority

Municipalities have no original legislative power. They make use of the instrument of the articles of association in the sense of a secondary law within the framework of the self-administration guarantee of Article 28, Paragraph 1, Clause 1 of the Basic Law.

The municipal ordinances of the federal states contain the respective authorization bases. For example, Section 5 (1) of the Hessian Municipal Code (HGO) reads : The municipalities can regulate the affairs of the local community through statutes, unless otherwise stipulated by law. Articles of association only require the approval of the supervisory authority if approval is expressly required by law. The regulations in the other federal states are comparable.

The municipalities cannot make any regulations that extend beyond the territorial scope of their statutes (i.e. the municipality area) or even beyond the scope of the municipal code as a basis for authorization. The text of the law is also clear in other respects: The regulations of the BGB , UrhG , etc. are neither to be undermined nor restricted by the municipal statutes, but rather a final statutory regulation in the sense of the municipal code , which leaves the municipality no room for maneuver.

As a rule, two areas of law are affected by municipal coats of arms statutes : copyright ( copyright law ) and naming rights ( Section 12 BGB and the regulation of names, coats of arms and seals of the respective municipal code). A number of municipalities have issued a statute of coats of arms. As a rule, these statutes merely repeat the content of the laws to a large extent. So far the heraldic statutes are permissible, but superfluous. If they conflict with the legal regulations, they are ineffective.

copyright

Within the scope of the extensive rights of use acquired from the designer of the coat of arms ( heraldry ), provided that the contractual partners have agreed to these or an implied regulation can be proven, the municipality can of course waive part of its exclusive rights of use in a coat of arms statute.

In the municipalities, the necessary knowledge regarding the copyright on their own coat of arms is often not available. In many cases, there is already a lack of information as to where the municipality's own coat of arms comes from. The basis was often a symbol that was already used as a seal in medieval documents and was later simply traced. In some cases, coats of arms were used as a template for the heraldic final drawing, the copyrights of which had already expired. Or the changes made to the submission that has become public domain have not reached the necessary copyright creation level for an independent work.

Basically, coats of arms are in the public domain as an official work according to § 5 Abs. 1 UrhG. (see official coat of arms ).

Naming rights

The contents of the heraldic statutes that regulate the use of the coat of arms are doubtful , since these regulations already result from § 12 BGB (e.g. in conjunction with § 14 HGO). Accordingly, city coats of arms are also fundamentally protected. In the context of higher-ranking law, the regulations of the statutes can only be self-restrictions of the municipality in the sense of the principle of equal treatment in order to prevent arbitrary handling by the administration.

With regard to the scope of name protection for sovereign holders, it should be noted that the instruments of commercial legal protection ( trademark law ) remain closed to the sovereign affected by their name rights. The municipalities are therefore dependent on civil name protection in accordance with Section 12 BGB.

Use of the coat of arms

According to the principles of the BGH, when using the coat of arms, a distinction is to be made between illegal use or use (without corresponding permission) and the legal description according to the principles of the right to quote. The use of a third-party coat of arms is given not only in the case of a completely identical takeover, but also in the case of a similar reproduction, provided that it contains the essential features of the original and is therefore suitable to indicate the person entitled.

Carrying the coat of arms

The use of a coat of arms means its name-based assignment in the sense of z. B. the use of an official title or an academic degree. This means that a person or institution regularly attaches a certain coat of arms to their own name when dealing with the environment.

The right to use the coat of arms lies exclusively with the right holder of the name, the municipality, the city, the municipality association or the regional authority. Here the legal situation does not differ from the private use of names and coats of arms. However, the owner of the name is permitted to allow others to use the coat of arms or to use it. So it can be in the interest of the municipality if the own companies in an independent legal form (own company, GmbH, AG etc.) such as municipal utilities as vicarious agents for the tasks of general interest use the uniform coat of arms and thus indicate that they are part of the "group “Church are. A prominent example of this are the notaries who, in this role, carry the state coat of arms and seals as entrusted entrepreneurs.

The unauthorized use of the coat of arms, for example in connection with the title of a newspaper or an advertising paper, can violate the name right of the coat of arms owner from the point of view of name confusion. The imprint of the municipal coat of arms can give the impression that the publication is an official publication organ of the municipality. The municipality can legally defend itself against the unauthorized use of the coat of arms. However, a coat of arms statute is not required to prevent unauthorized use.

Use of the coat of arms

Of particular fiscal interest for the municipality is the commercial marketing of the municipality's coat of arms on textiles, ceramic products, printed matter, stickers and others. The municipality has the option of regulating the corresponding use by private individuals by means of a civil law contract or of marketing its own products.

Quoting the coat of arms

The right to cite a coat of arms exists without a permit from the municipality and therefore not protectable by a statute. Any further use within the meaning of § 12 BGB is only given if the use of the coat of arms in traffic gives the impression that the coat of arms bearer has given the user the right to use it accordingly. Such a case exists, for example, when the coat of arms is used to decorate goods or otherwise for commercial identification.

Approaches by municipalities to make the use of coats of arms for heraldic-scientific purposes dependent on a permit are unlawful because, without a corresponding legal basis, they are incorporated into the fundamental right to freedom of expression, free reporting and (historical) research ( Art. 5 GG) intervention. Regulations in municipal coats of arms statutes, according to which approval is required for the illustrative, quoting or purely depicting use of the city arms, are ineffective because of the encroachment on fundamental rights and do not have to be observed.

Web links

  • On the subject
    • Gies judgment OLG Cologne , which states there on official works: However, non-linguistic works i. S. of the regulation be official works. In this respect, in addition to representations on banknotes and coins, for. B. also consider those in municipal coats of arms. (Explanation: The abbreviation “G.” used in the judgment stands for the painter and sculptor Ludwig Gies . The plaintiff is the collecting society Bild-Kunst based on a management agreement with the heirs. The defendant is the publisher of the weekly magazine “ Focus ”, abbreviated in the judgment with "F.") - NJW 2000, 2212; AfP 2000, 583-58
    • ARCHIVALIA - heraldic statutes
    • BGH (I ZR 235/99) Unauthorized use of the coat of arms of the city of Düsseldorf in connection with the title of the advertising paper “Düsseldorfer Anzeiger” (confusion of names) and for a similar reproduction that contains essential features of the original.

Individual evidence

  1. ↑ cf. BGH, judgment of 23 September 1992, Az. I ZR 251/90, BGHZ 119, 237, 245 - Universitätsemblem; BGH, judgment of October 29, 1992 , Az. I ZR 264/90, BGHZ 120, 103, 106 - Columbus; MünchKommBGB / Schwerdtner, 4th edition, § 12 marginal number 51, 68; BGHZ 119, 237, 245 - university emblem; BGH, judgment of May 19, 1976 , Az. I ZR 81/75, GRUR 1976, 644, 646 = WRP 1976, 609 - Kyffhäuser.
  2. ↑ so already RGZ 71, 262, 264 f. - Aachen city arms.
  3. ↑ cf. LG Karlsruhe judgment of November 23, 1998 ( Memento of the original of October 23, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 10 O 286/98, full text; Bücking in NJW 1997, 1886, 1888 under II.3.a. @1@ 2Template: Webachiv / IABot / www.stroemer.de
  4. ↑ cf. OLG Hamburg, OLGE 3, 89; Staudinger / Weick / Habermann, BGB (1995), § 12 Rn. 222.
  5. ↑ cf. VwGH of June 25, 1966, 1368/1965
  6. ↑ cf. on this BGHZ 119, 237, 245 and BGH, - I ZR 235/99, decision of March 28, 2002, NJW 2002, 3539
  7. ↑ cf. on this Palandt, BGB, § 12 Rn. 38 and BGHZ 119, 237, 245: Use of the university seal (...) on T-shirts.