Coat of arms statutes will issued by German municipalities and districts with the goal, the representation, to regulate use and guidance of the local coats of arms (official coats of arms).

Legal bases of the statute power

Municipalities do not possess an original law-making power. They avail themselves in the framework of the basiclegally secured autonomy warranty kind 28 exp. 1 sentence 1 Basic Law of the instrument of the statute in the sense of a derived right.

The Gemeindeordnungen of the countries contain appropriate in each case authorization bases. Thus reads for example "§ 5 exp. (1) of the hessian Gemeindeordnung (HGO): The municipalities can regulate the affairs of the local community by statute, as far as legally nothing else is certain. Statutes require the permission of the supervisory authority only, as far as a permission is expressly prescribed in the laws. The regulations in the other Lands of the Federal Republic are comparable.

The municipalities cannot make regulations, extend over the spatial area of application of their statute (thus the Gemeindegebiet) outside or over the area of application of the Gemeindeordnung as authorization basis. The legal text is clear also in other regard: The regulations of the BGB, UrhG etc. are by gemeindliche statute neither to scoop out nor limit, but in the sense of the Gemeindeordnung a locking legal regulation, which leave no organization clearance to the municipality.

Of local coat of arms statutes usually two right ranges are concerned: Copyright (copyright law) and the right of the use of a name ("§ 12 BGB and the regulation for on behalf of, coat of arms and seal guidance of the respective Gemeindeordnung). A whole set of municipalities issued a coat of arms statute. Usually these statutes in far parts repeat only contents of the laws. So far the coat of arms statutes are permissible, but redundant. If they oppose the legal regulations, they are ineffective.

Copyright

In the context of their of comprehensive rights to use acquired by the designer of the coat of arms (Heraldiker), so the contracting parties these agreed and/or a konkludente regulation to prove is, can the municipality naturally in a coat of arms statute without a part of their exclusive rights to use do.

In the municipalities often the necessary knowledge is missing regarding copyright at the own coat of arms. Often it is missing already at information, from where the own coat of arms picture of the municipality comes. Often the basis was a symbol, which was already used in medieval documents as seal and after-drawn later only. Coats of arms than collecting main of the heraldischen fair design were partly used, whose copyrights had already run off. Or the changes the necessary copyright creation height for their own work, made at in common-free the collecting main become, did not reach.

In principle coats of arms are in common-free as official work in accordance with "§ 5 exp. 1 UrhG. (see official coat of arms).

Right of the use of a name

Doubtfuly contents of coat of arms statutes, which regulate a leading of the coat of arms, are there itself already out "§ 12 BGB (about ith Vth M. "§ 14 HGO) devoted these regulations (see BGHZ 119, 237, 245 - university emblem; 120, 103, 106 - Columbus; 4. Aufl., "§ 12 Rdn. 51, 68; BGHZ 119, 237, 245 - university emblem; BGH, Urt. v. 19. May 1976 - I ZR 81/75, GRUR 1976, 644, 646 = WRP 1976, 609 - Therefore also Stadtwappen are in principle protected (so already RGZ 71, 262, 264 f. - Aachener Stadtwappen). The regulations of the statute can be in the context of right only self-restraint of the municipality in the sense of the equal treatment principle, in order to prevent an arbitrary handling by the administration.

With the range of the Namensschutzes by sovereignty carriers it is to be noted that the instruments of the commercial legal protection (trademark law) remain locked for the sovereignty carrier concerned in its right of the use of a name. The municipalities are therefore on the civil-legal Namensschutz accordingly "§ 12 BGB dependent (see LG Karlsruhe 1998 - 10 O 286/98; in NJW 1997, 1886, 1888 under II.3 A)).

Use of the coat of arms

According to the principles of the BGH is to be differentiated when using the coat of arms between (without appropriate permission) illegal leading or using and the legal description according to the principles of the quotation right. The use of a strange coat of arms is not only with a completely identical assumption, but also during an only similar rendition given, if this contains the substantial characteristics of the original and so that is suitable, to the entitled one to refer (see OLG Hamburg, OLGE 3, 89; Staudinger/Weick/Habermann, BGB (1995), "§ 12 Rdn. 222).

Lead the coat of arms

The right for leading the coat of arms is exclusively with the right owner of the name, to the municipality, the city, the local authorities association. Herein the legal situation does not differ from private leading of names and coats of arms. It is however permitted the owner of the name to permit the guidance of the coat of arms or the customs making other one. So it can lie in the interest of the municipality, if the own enterprises in independent legal form (own establishment, GmbH, AG etc.) as for instance public utilities as an executing aide of the tasks of the precaution for existence the uniform coat of arms to lead and thus to recognize give that they are a component "„of the company "“municipality. A prominent example for this are the notaries, who lead in this function as beliehene entrepreneurs Landeswappen and seals.

The not approved use of the coat of arms for instance in connection with the title of an indicator sheet can hurt the right of the use of a name of the coat of arms owner under the criterion of a named-moderate allocation confusion (see in addition BGHZ 119, 237, 245). From the casting of the municipality coat of arms the impression can result, the indicator sheet is the proclamation official notice of the municipality. Against unauthorized leading of the coat of arms the municipality can set itself legally to the resistance. It does not require a coat of arms statute for the defense unauthorized leading however.

Use-make the coat of arms

Is from special fiscal interest in the municipality the commercial marketing of the gemeindlichen coat of arms on textiles, ceramic(s) products, prints, stickers and other one. The municipality has the possibility of regulating by civil contract the appropriate use by private ones or own products to marked out.

Quote the coat of arms

Without a permission by the municipality and thus also not by a statute contactorable exists to quote the right, a coat of arms. Beyond that going a customs making in the sense "§ 12 BGB is only then given, if from the use of the coat of arms in traffic the impression results, the coat of arms carrier to the user a right for appropriate use gave. Such a case is present about if the coat of arms is used for the equipment of goods or otherwise for the business marking (see in addition Palandt "§ 12 BGB Rn. 38 too "§ 12 BGB and BGHZ 119 a.a.O.: Use of the seal of the University of (...) on T-Shirts).

Beginnings of municipalities to make the use of coats of arms for heraldisch scientific purposes dependent on a permission are illegally, there them without an appropriate legal basis into the fundamental right on liberty of opinion, which free reporting and (historical) the research (kind 5 GG) intervene. A regulation in local coat of arms statutes to a permission reservation of illustrating, more quoting or purely illustrating use Stadtwappen are ineffective because of the fundamental right interference and require no attention.

see also

• Wikipedia: Coat of arms

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