The concept of banking secrecy does not work absolutely. The right to refuse information on a (known) account holder has to be balanced against rights a trademark owner has to adequately protect his intellectual property by investigating the payment flow connected to an illegal purchase of a counterfeited product. This is the bottom line of a judgment handed down on last Wednesday by the German Federal Court of Justice (BGH, judgment of 21.10.2015, Case Ref.: I ZR 51/12, press release). The German judges follow a preliminary ruling the Court of Justice of the European Union rendered on 16 July 2015 (CJEU, Case Ref.: C‑580/13 – German Coty, Blog Post). What is particularly interesting is that the court does see room for balancing the contradictive interests denying the absolute character of the German bank secret.

Background

Coty Germany („Coty“) is the legal owner of the trademark „Davidoff Hot Water“. The company conducted an online test purchase in order to verify the authenticity of the product offered at an auction platform. It turned out to be a fake and thus a trademark infringement could be established. Upon Coty’s request, the platform revealed information on the seller who subsequently denied any kind of trademark infringement. Consequently, Coty asked the seller’s bank to reveal further information on the account holder. However, the bank pointed to its obligations under the German bank secret and denied any disclosure.

The court case went all the way up the German Federal Curt that eventually stayed the proceedings and addressed the following question to the CJEU:

“Must Article 8(3)(e) of Directive 2004/48 be interpreted as precluding a national provision which, in a case such as that in the main proceedings, allows a banking institution to refuse, by invoking banking secrecy, to provide information pursuant to Article 8(1)(c) of that directive concerning the name and address of an account holder?”

The Preliminary Procedure

On 16 July 2015, the CJEU ruled that there must always be the possibility for the court to balance the contradicting rights of the account holder on one side, and the owner of an IP right on the other one (CJEU, judgment of 16 July 2015, Case Ref.: C‑580/13 – German Coty, Blog Post). National provisions setting out an absolute, unlimited and unconditional bank secret do not allow any balancing. As a result, such domestic law would infringe Art. 8 (3) (e) of the Directive2004/48. The question whether the specific provisions on banking secrecy in Germany do allow for an adequate balancing of contradicting rights was for the German Federal Court to decide.

The Decision by the BGH

On the basis of the above guidance, the German Federal Court now ruled that the German bank secret indeed leaves room for interpretation and particularly for the balancing of interests. Thus, the applicable law as such is in line with the respective EU law, i.e. Article 8(3)(e) of Directive 2004/48. As regards the merits of the case, the judges take the view that in the course of the mandatory balancing of the fundamental right to protection of personal data of the account holder and the right to protection of intellectual property of the rights holder, the latter prevail Accordingly, Coty’s right to obtain adequate information on the account holder was approved.

Comment

With its judgment, the German judges clearly follow the CJEU. The decision resonates, at least from what can be digested from the press release (the full-text verdict is still to come). However, it is a compelling view to interpret German bank secrecy in a way that allows the consideration and weighting of other fundamental rights including intellectual property. In an ideal world, the full-text verdict will give clear guidance on the criteria governing such balancing of rights.