In a ruling dated December 27, 2017, the Higher Regional Court of Frankfurt am Main (case reference: 6 W 96/17) imposed an administrative fine of EUR 5,000 on a company. The company had once again placed an online advertisement that had been prohibited by the court and thus breached the existing obligation to cease and desist.
The advertisement placed affected the obligation to cease and desist and – even if it was placed by mistake by an employee – was also the fault of the company.
Injunctive relief goes beyond the wording – core-like forms of infringement covered
The OLG Frankfurt a.M. clarifies that the scope of a court order is by no means limited to the prohibition described. However, the previous subject matter of the dispute must not be abandoned. Accordingly, a claim for injunctive relief also includes practically equivalent (so-called “core-like”) infringements, because otherwise it would be easy to undermine the title.
In the original injunction, the online provider was prohibited from providing a “Book online” and “Hotel booking” button that linked to the booking engine of third-party provider “X”. According to the Frankfurt judges, the injunction also included the link to the website of another third-party provider “Y”.
Wording of the injunction order not decisive
Insofar as the online provider changes the wording to “reserve a room”, this also violates the injunctive relief already granted. As in the case of the “Book online” button, this also suggests to the customer that they will make the booking directly with the hotel and not via a third-party provider.
Even the fact that an employee is responsible for the button does not change the legal situation for the Frankfurt judges. This is because organizational fault is sufficient in this case, i.e. if not everything possible and reasonable is done to prevent violations of the cease and desist order.
As the regional court emphasized in its ruling, the requirements for this are extremely strict. The prevention of breaches of competition law by employees could include influencing them accordingly through instructions and orders and monitoring their compliance. The instructions must always be given in writing and must point out the disadvantages of a violation with regard to both the employment relationship (termination) and enforcement.
Extensive obligations to monitor and instruct employees
It is therefore not enough to simply inform employees or agents about the content of the title and request them to behave accordingly. Rather, compliance with the orders must also be monitored.
The ruling once again shows the strict requirements for compliance with an injunction. Even the smallest mistake can quickly lead to costly proceedings. It is therefore advisable to take injunctions into account as far as possible.
