The plaintiff in a legal dispute decided before the Hamburg Higher Regional Court is the owner of exclusive rights of use to map material available on the Internet. It offers companies and private individuals the opportunity to acquire rights to use map extracts for their own purposes.

Calculation of the license damage when using map material as advertising material

However, the later defendant apparently did not want to make use of this offer. In order to advertise a real estate offer on a well-known Internet portal, it made two map sections of the plaintiff publicly accessible on the Internet. She did not have a license for this. The owner of the rights of use then demanded that the two map excerpts not be made publicly accessible and that damages be paid.

The defendant issued a cease-and-desist declaration with a penalty clause and paid € 300 in damages. However, the parties then declared the legal dispute only partially settled. Instead, the plaintiff extended her claim for damages by a further € 1,220 plus interest. She based this claim on the principles of the so-called license analogy. According to this, the amount to be paid as damages is the amount that the plaintiff would normally demand for lawful use to the extent in question here.

Scope of license damages insufficient in plaintiff’s view

The corresponding prices for the licenses were determined by general terms and conditions and were not negotiable or enforceable for the licensee. This is evident from 200 contracts, some of which were concluded completely freely, others after prior warning. The prices were also, compared to the prices of similarly positioned card publishers, absolutely in line with the market.

However, the corresponding application was rejected by the competent regional court, whereupon the owner of the map material appealed to the Hamburg Higher Regional Court. However, she was not successful with this either: in their ruling of 4 March 2021 (A.Z.: 5 U 81/15), the Hamburg judges ruled in her favor to the extent that the claim for damages is based on the amount that the infringer would have had to pay as reasonable compensation if he had received permission to use the infringed right.

License rates in post-licensing agreements unsuitable for calculating damages

However, in the opinion of the court, the plaintiff’s reference to the price list for licenses in its general terms and conditions is not sufficient to determine a customary license fee. This is because the submission of the price list does not prove that such prices can also be enforced on the market. The fact that the majority of the contracts submitted were concluded after the assertion of claims due to an infringement of rights is particularly indicative of this.

The Higher Regional Court of Hamburg thus follows the case law of the Federal Court of Justice, according to which license rates in post-licensing agreements are generally unsuitable for the calculation of license damages. For rights holders, this means above all that the enforcement of claims for damages on the basis of the so-called license analogy is made more difficult. This is because if the infringed party cannot prove a corresponding contractual practice, it usually comes away empty-handed.