In a case to be decided by the Higher Regional Court of Celle, the operator of a company was entitled to claim under Sec. 8 para. 1 sentence 1, para. 3 no. 1 in conjunction with Sections 3, 5 para. 1 No. 3 UWG against a competitor to refrain from advertising a specific location (see judgment of 07.07.2015, Ref.: 13 W 35/15).
Warning due to misleading advertising with company locations
The challenged advertising statement that the competitor’s company could be found at the location, among other places, was misleading pursuant to Section 5 para. 1 sentence 2 no. 3 UWG was misleading, according to the judges. It contained untrue and misleading information about the circumstances of the company in question.
Company location only for “real” branch office
When specifying a location, legal transactions regularly expect a branch office with its own office and staff with a contact person who can be clearly assigned to the company and through whom the customer can contact the company to raise its concerns.
The competitor’s premises would not meet these requirements: They are regularly visited because work equipment and materials are stored there. However, no employee is present during normal opening hours or at least during expressly announced opening hours for contact attempts by interested parties.
Misleading about company location: Influencing customers
The challenged advertising was also objectively capable of influencing the decision of the targeted interested parties in a relevant manner.
In this respect, the customer’s regular interest in being able to contact an employee of the company to raise concerns is important. The fact that potential customers regularly only contact the company by post or telephone in order to arrange a personal appointment – regularly on site, only exceptionally on the company’s premises – does not change this. Advertising with a specific location suggests that personal contact is available on site. It is sufficient if interested parties are attracted by the prospect of being able to make such contact.
In addition, the indication of different locations also suggests a particular economic significance and company size, which could also be important for the customer’s decision.
