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BGH, decision of November 21, 2018, Ref.: I ZR 51/18

Missing imprint information justifies the reimbursement of out-of-court legal fees.

Tenor

The defendant is advised that the Senate intends to reject his appeal against the judgment of the Higher Regional Court of Stuttgart – 2nd Civil Senate – dated February 22, 2018 in accordance with Section 552a sentence 1 ZPO.

Reasons

I. The parties act as intermediaries in the financial services sector. In a lawyer’s letter dated March 30, 2016, the plaintiff complained to the defendant that the latter’s website was missing various legal information required under Section 5 of the German Telemedia Act (TMG) and requested that the defendant issue a cease-and-desist declaration with a penalty clause. The defendant issued a cease-and-desist declaration, but rejected the plaintiff’s claim for warning costs. The plaintiff asserts this claim in the dispute in the amount of a 1.3 business fee, calculated on the basis of an object value of € 5,000.

Also in March 2016, the defendant filed a claim against the plaintiff before the Berlin Regional Court by way of an interim injunction in connection with events relating to the submission of reviews on the plaintiff’s Facebook page. His claim was unsuccessful in both instances. The part of the pre-trial warning costs incurred in this context that cannot be offset against the costs of those proceedings in the amount of a 0.65 business fee, calculated on the basis of an object value of € 50,000, plus expenses and VAT, totaling € 923.38, is offset by the defendant against the claim by way of auxiliary offsetting.

The Regional Court ordered the defendant to pay € 492.54 plus interest. The defendant’s appeal was unsuccessful. With his appeal on points of law, which was allowed by the Court of Appeal and which the plaintiff requested be dismissed, the defendant is pursuing his request to dismiss the claim.

II. The Senate intends to reject the defendant’s appeal on points of law admitted by the Court of Appeal by unanimous decision pursuant to Section 552a sentence 1 ZPO. The requirements for the admission of the appeal are not met (see II 1). The appeal also has no prospect of success (see II 2).

1. the requirements for the admission of the appeal are not met. In particular, the further development of the law (Section 543 (2) no. 2 ZPO) does not require a decision by the appellate court.

a) The Federal Court of Justice has clarified the question of whether a warning letter directed against a competitive act but addressing several different aspects of this competitive act is fully justified within the meaning of Section 12 para. 1 sentence 2 UWG is fully justified if only one of the infringements mentioned in the warning exists, in its judgment of October 31, 2018 (I ZR 73/17 – Jogging pants), which was issued after the conclusion of the present appeal proceedings. According to this ruling, if the creditor objects in a warning letter to a specifically described behavior, such as a certain advertisement, which he objects to as anti-competitive from several points of view, the costs for the warning letter are generally already fully reimbursable if the claim proves to be justified from one of the aforementioned points of view.

2 The appeal also has no prospect of success.

a) The Court of Appeal did not err in law in deciding that the plaintiff was entitled to compensation for his warning costs pursuant to Section 12 para. 1 sentence 2 UWG. In the case in dispute, the warning is already fully justified because one of the infringements of Section 5 TMG mentioned in it has occurred.

aa) The appeal rightly raises no objections to the assessment of the Court of Appeal that the imprint of the defendant’s website, contrary to Section 5 para. 1 No. 3 TMG and this infringement was noticeable within the meaning of Section 3a UWG.

bb) The warning was therefore justified overall, even if the imprint of the defendant’s website was objected to as anti-competitive in several respects.

According to the findings of the Court of Appeal, the warning was directed against a uniform competitive act, namely the design of the defendant’s website. With regard to the declaration of discontinuance demanded by the plaintiff, the Court of Appeal interpreted the warning without error of law to the effect that the plaintiff did not make different infringements the subject of separate attacks.

Contrary to the opinion of the appeal, a declaration to cease and desist attached to the warning letter and pre-formulated by the creditor can be used for the interpretation of the warning letter. If this shows that the creditor makes the individual complaints the subject of separate attacks, such as when he asserts separate claims for injunctive relief with regard to various advertising statements in an advertisement, these are separate attacks. In such a case, the warning is only justified and the costs of the warning are only to be reimbursed to a competitor to the extent that the individual complaints are justified (BGH, judgment of October 31, 2018 – I ZR 73/17 para. 37 f. – Jogging pants). These conditions for only partial compensation of the warning costs are not met in the case in dispute.

cc) Contrary to the opinion of the appeal, the assumption of an object value of € 5,000 for the warning is not subject to any significant doubts under appeal law.

b) The appeal is unsuccessfully directed against the Court of Appeal’s assessment of the auxiliary set-off declared by the defendant.

Contrary to the opinion of the appeal, the contested decision was reached without procedural errors and, in particular, does not show a lack of reasoning within the meaning of Section 547 No. 6 ZPO.

The Court of Appeal assumed that the findings of the Regional Court on which its decision was based pursuant to Section 529 para. 1 No. 1 ZPO (German Code of Civil Procedure) could not support the claim asserted with the auxiliary set-off.

The appeal complains unsuccessfully that the Court of Appeal did not deal with the substantive legal requirements of the claim, but merely referred to the statements in the decision of the Court of Appeal of June 14, 2016 – 5 W 114/16 (unv.) referred to by the Regional Court. The Court of Appeal did not refer to this decision, but assumed that the findings in the judgment of the Regional Court were binding pursuant to Section 529 para. 1 no. 1 ZPO. Its further statements indicate that it assessed the legal requirements of the claim itself on the basis of these findings and denied their existence.

It is consistent with Section 529 ZPO that the Court of Appeal accepted the findings of the Regional Court, which referred to the statements in the decision of the Court of Appeal of June 14, 2016 and adopted them as its own. The reference made by the Regional Court to this decision is procedurally unobjectionable. If the reference to a decision made between the same parties does not constitute a procedural deficiency in reasoning within the meaning of Section 547 No. 6 ZPO (see [on Section 551 No. 7 ZPO aF] BGH, decision of December 21, 1962 – I ZB 27/62, BGHZ 39, 333, 346 – Warmpressen), the reference made by the Regional Court in the case in dispute is also not procedurally objectionable. The appeal does not raise any other procedural objections.

3. the parties shall be given the opportunity to comment within three weeks of notification of this decision.

Schaffert Löffler Schwonke Feddersen Schmaltz Note: The appeal proceedings have been settled by withdrawal of the appeal.

Lower courts:

Ravensburg Regional Court, decision of 20.04.2017 – 4 O 368/16 –

OLG Stuttgart, decision of 22/02/2018 – 2 U 122/17 –

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