Law book and wooden judges gavel on a wooden table top in a shaft of sunlight with rayed shadow effect, conceptual image of law enforcement with copyspace

KG Berlin, judgment of 08.01.2019, Ref.: 5 U 83/18

The boundary between (non-labeling) brand naming and (labeling) brand naming is crossed in any case if the consumer can purchase the product directly via a link.

In the proceedings for an interim injunction

the 5th Civil Senate of the Court of Appeal, Elßholzstraße 30 – 33, 10781 Berlin, at the hearing on January 8, 2019 by the Presiding Judge at the Court of Appeal, the Judge at the Court of Appeal and the Judge at the Court of Appeal

found to be right:

1.

On the defendant’s appeal, the judgment of the Civil Chamber 52 of the Berlin Regional Court – 52 O 101/18 – delivered on May 24, 2018 is partially amended:

The application for an interim injunction is dismissed insofar as it was aimed at prohibiting the defendant,

to present commercial content in the course of business using the image of a person or a reference to a person and the designation “…” without making the commercial purpose of the publication clear,

unless it is directly apparent from the circumstances,

by doing so, such as by publishing contributions

– with the image of a person or a reference to a person (“…”) = 1st view

– after calling up the first view by clicking on the name of one or more companies on the same page = 2nd view

and

– by clicking again on the account of the company whose name was displayed in the second view = third view,

without indicating the commercial purpose of the publication,

if this happens, as can be seen from the attachment A 4 a to c, which shows the Instagram blog “…” of the defendant.

2.

The remainder of the defendant’s appeal is dismissed.

3.

The applicant shall bear 1/3 and the defendant 2/3 of the costs of the proceedings at both instances.

Reasons

A.

Pursuant to § 540 para. 2, § 313a ZPO, the facts of the case are not presented.

B.

The defendant’s appeal is admissible and partly well-founded.

I.

The defendant’s submission regarding extensions of the application for which there is no reason for an injunction, a partial withdrawal of the application for an interim injunction, which should have been taken into account in the decision on costs, and insufficient certainty of the amended application and, accordingly, of the operative part of the judgment does not hold water.

1.

The following course of the proceedings at first instance is to be assessed:

The applicant has formulated the application in the written application,

to prohibit the defendant,

to present commercial content in the course of business using the image of a person and their name “…” without making the commercial purpose of the publication clear,

unless it is directly apparent from the circumstances,

by doing so, such as by publishing contributions

– with the image of a person (“…”) = 1st view

– after calling up the first view by clicking on the name of one or more companies on the same page = 2nd view

and

– by clicking again on the account of the company whose name was displayed in the second view = third view,

without labeling the first or second view as a commercial publication,

in each case when this occurs, as shown in Annexes A 3 to A.

In the written submission dated April 24, 2018, the applicant clarified that the end of the application should read: “in each case, if this happens, as shown in Annexes A 3 to A 6 c”.

At the hearing before the Regional Court, the applicant submitted this application with the provisos that it concerned the publication of posts with the image of a person or a reference to a person and that it should state at the end of the application “in each case when this happens, as can be seen from the attachment sets A 4 a to c, A 5 a to c, A 6 a to c, which each show the Instagram blog “…” of the defendant”.

The modified application then read:

to prohibit the defendant,

to present commercial content in the course of business with a picture of a person or a reference to a person and their name “…” without making the commercial purpose of the publication clear,

unless it is directly apparent from the circumstances,

by doing so, such as by publishing contributions

– with the image of a person or a reference to a person (“…”) = 1st view

– after calling up the first view by clicking on the name of one or more companies on the same page = 2nd view

and

– by clicking again on the account of the company whose name was displayed in the second view = third view,

without labeling the first or second view as a commercial publication,

in each case when this happens, as can be seen from the annexes A 4 a to c, A 5 a to c, A 6 a to c, which each show the Instagram blog “…” of the defendant.

The Regional Court then prohibited the defendant from doing so,

to present commercial content in the course of business using the image of a person or a reference to a person and the designation “…” without making the commercial purpose of the publication clear,

unless it is directly apparent from the circumstances,

by doing so, such as by publishing contributions

– with the image of a person or a reference to a person (“…”) = 1st view

– after calling up the first view by clicking on the name of one or more companies on the same page = 2nd view

and

– by clicking again on the account of the company whose name was displayed in the second view = third view,

without indicating the commercial purpose of the publication,

in each case when this happens, as can be seen from the annexes A 4 a to c, A 5 a to c, A 6 a to c, which each show the Instagram blog “…” of the defendant.

The Regional Court changed the phrase “without labeling the first or second view as a commercial publication” because, according to the grounds of the judgment under appeal, it should be left to the defendant to find ways out of the ban.

2.

With the phrase “if this happens as ….” and the reference to the respective listed attachments, the plaintiff has used the usual wording, which is intended to express that the application for injunctive relief is aimed at the specific form of infringement. The additions “with the depiction of a person and their designation “…” or “with the depiction of a person of a person (“…”) = 1st view” are therefore generally harmless overprovisions, but not as objectives of the application that go beyond the specific form of infringement (see BGH GRUR 2011, 340 – Irische Butter, para. 24).

Accordingly, the addition of the phrase “or a reference to a person” to the abstract headline cannot be seen as an extension of the application, especially since the applicant has already described Annexes A 6 a and A 6 b in the application to the effect that they show “a luxuriously furnished aircraft cabin with blue cushions on the large seats and white sneakers in front of it”.

3.

An application for prohibition aimed at prohibiting the specific form of infringement satisfies the requirement of certainty pursuant to Section 253 para. 2 no. 2 ZPO (see BGH GRUR 2014, 398 – Online-Versicherungsvermittlung, para. 17; BGH, judgment of April 26, 2018, I ZR 171/17 – Applikationsarzneimittel, para. 10).

4.

Since several similar acts of infringement alleged in the action, on which an application for injunctive relief with a specific purpose is based, constitute a single cause of action (see BGH GRUR 2006, 421 – Markenparfümverkäufe, para. 26), the omission of the reference to Exhibit A 3, in which further Instagram posts of the defendant were depicted, which are not shown in Exhibits A 4 to A 6, does not constitute a withdrawal of the application.

5.

It is not possible to understand why the Regional Court was disturbed by the phrase “without labeling the first or second view as a commercial publication”. The defendant apparently wanted to take into account the fact that the third view shows Instagram accounts of third parties.

However, it is ultimately harmless that the wording of the judgment now reads before the specific form of infringement: “without making the commercial purpose of the publication clear” and after the specific form of infringement: “without making the commercial purpose of the publication clear”.

II.

The applicant is only partially entitled to the injunctive relief sought.

The Regional Court rightly assumed that the defendant did not act for private purposes with the contested posts on Instagram, but as an entrepreneur within the meaning of Section 2 para. 1 No. 6 UWG.

It can also be assumed without further ado that the so-called tags (signs) with the trademarks of other entrepreneurs, which appear when you click on the image posts on the defendant’s Instagram account, and the links set there with redirects to

Instagram accounts of these traders were objectively suitable for promoting the sale of the goods offered by these traders.

However, insofar as it can be assumed with overwhelming probability that the defendant has not been remunerated or otherwise rewarded by the manufacturers or dealers mentioned for the presentation, it should be noted that, in principle, there is no advertising that the defendant must label as such if the defendant distributes exclusively editorial content in a contribution.

A general presumption that entrepreneurial influencers who present products or brands in their posts are engaging in commercial communication within the meaning of Section 5a para. 6 UWG (cf. Mallick/Weller, WRP 2018, 155, para. 16) is not justified in comparison to the rules that apply to conventional media companies.

1.

Accordingly, the applicant has a claim against the defendant to cease and desist from presenting content in the course of trade as shown in Annexes A 6 a to c (Section 8 (1) and (3) No. 2, Sections 3, 5a (6) UWG).

According to § 5a Abs. 6 UWG, anyone who fails to disclose the commercial purpose of a commercial act is acting unfairly if this is not immediately apparent from the circumstances and the failure to disclose is likely to induce the consumer to take a commercial decision that he would not have taken otherwise.

According to Section 2 para. 1 No. 1 of the German Act Against Unfair Competition (UWG) is, among other things, any conduct by a person for the benefit of their own or another person’s company prior to the conclusion of a transaction that is objectively related to the promotion of the sale of goods.

a)

Since the defendant has made the commercial marketing of its own image a business model, it is an entrepreneur within the meaning of Section 2 para. 1 No. 6 UWG (cf. Henning-Bodewig WRP 2017, 1415; Mallick/Weller WRP 2018, 155, para. 15). Posts, as can be seen from Annex A 6, are not private self-promotion based purely on the desire to communicate, but are aimed at attracting attention and resonance in both consumer and business circles, which strengthen the image of the performer and thus promote her own company, for example by increasing the number of followers and the number of comments from visitors to her Instagram page. Enhancing the image of the defendant and her image in the targeted public (consumers and entrepreneurs) is tantamount to increasing the value of the services she offers.

b)

However, with the tag “…” and the link to the Instagram page of the company “…”, the defendant also objectively and directly promoted a third-party company, namely “…”.

A commercial act within the meaning of Section 2 para. 1 No. 1 UWG is to be assumed if the act, when viewed objectively, serves the purpose of promoting the sale or purchase of goods or services. If the action primarily serves other objectives than influencing the business decision of consumers with regard to products and merely has a reflex effect on the promotion of sales or purchases, it does not constitute a commercial act within the meaning of Section 2 para. 1 No. 1 UWG. Accordingly, ideological, scientific, editorial or consumer policy statements by companies or other persons that are not functionally related to the promotion of sales or purchases are not subject to the UWG. (see BGH GRUR 2016, 700 -Im Immobliensumpf, para. 12)

The defendant cannot claim to have published only an editorial contribution in the context described in Annexes A 6 a to c, in which an objective connection with the promotion of the sales of a third-party company can be denied. This is only the case if the contribution serves solely, or at least primarily, to inform and shape the opinion of its addressees. (see BT-Drucksache 16/10145, p. 21; BGH GRUR 2012, 74 – Coaching-Newsletter, para. 15; BGH GRUR 2016, 700 -Im Immobliensumpf, para. 16; Köhler in Köhler/Bornkamm/Feddersen, UWG, 37th edition, Section 2 para. 67).

However, the tag ” …” and the content of the Instagram account to which the link led had no recognizable reference to the text and image post of the defendant.

The defendant’s text contribution deals with an upgrade that the defendant received on a flight to or from New York with the airline she selected. The defendant does not refer to an electronic device of the brand “…” or the company “…” in this text.

The posted image also only shows an electronic device, which does not come from “…”, but a headphone of the brand “…”.

The tag “…” therefore appears without any recognizable reference to the content of the post for visitors to the defendant’s Instagram page.

The connection between the flight and “…” already admitted by the defendant in the protective brief consisted in the fact that this company bore the costs of the defendant’s trip to New York.

Against this background, it can be assumed with overwhelming probability that the defendant’s intention to promote the sale of goods bearing the mark “…” in return was actually the motive for tagging and linking. In any case, the tag “…” appears to be advertising when viewed objectively, both with and without knowledge of this background.

From the relevant perspective of the average informed, attentive and reasonable visitor to the defendant’s Instagram account, the tag “…” literally hanging in the air has no information content. Its only recognizable purpose is to arouse the visitor’s curiosity and the expectation of being able to find out more by clicking on it. The aim of the tag is therefore to promote the sales of a third-party company, as the visitor attracted in this way is directly confronted with the advertising of the company “…” when he follows the link.

This cannot be seen differently if one assumes that the average informed, attentive and reasonable visitor to the defendant’s Instagram account is aware that the defendant places the links in order to inform the visitor about sources of supply for the products marked with tags. In the post that is the subject of Annex 6, the defendant did not present or evaluate any product of the “…” brand that could have aroused the viewer’s interest in a source of supply.

Nor can the defendant exonerate itself with the objection that it is “absolutely” customary for companies to cover the costs of “press trips” for media representatives, in particular from the area of print publications and television.

It is not apparent how the average informed consumer should be aware of this practice and – if he should have this knowledge – on what grounds he should attribute the appearance of the tag “…” in the present context to such a “press trip”. The viewer of the defendant’s Instagram account – as can be seen from Annex 6 c – is apparently not even informed of this connection if he – having become curious – clicks on the link and visits the Instagram account of “…”.

In fact, these backgrounds – without this having to be decided in the present proceedings – give rise to considerable doubts as to whether the defendant’s assumption expressed at the appeal hearing that it should simply have written more in order to avoid being classified as advertising is justified.

c)

Accordingly, the specific infringing form that is the subject of Annexes 6 a to c is to be regarded as serving commercial purposes as a whole, without it being necessary to go into the background of the other tags.

If one accepts the defendant’s view that the other elements of the post reproduced in Annexes 6 a and b without the tag and the link to “…” would have to be regarded as contributions of an editorial nature, this justifies a fortiori the necessity of labeling the commercial purpose of the post as a whole.

Such a mixture of editorial statements with tags and links that qualify as advertising, which appear incoherently when you move the mouse over the published image and click on it, justifies the risk of misleading the consumer and the need for clarification to a particular degree, because advertising and editorial levels merge into one another. The visitor to the account, who is less critical of the post due to its editorial nature and also attaches greater importance and attention to it than to labeled advertising, can no longer distinguish between the mixed levels. (see BGH GRUR 2013, 644 – Preisrätselauslobung V, para. 16; 18)

d)

The defendant has indisputably not labeled the post as advertising.

Nor can it be assumed that the defendant intends to argue that the commercial nature of the individual post on her Instagram account is derived from the number of followers indicated there. Insofar as the defendant makes such statements in the grounds of appeal, this clearly only serves to demonstrate the contradictory nature, in her view, of parts of the grounds of the contested judgment.

e)

The lack of labeling of the commercial character is likely to cause the consumer to make a commercial decision that he would not have made otherwise.

Due to the lack of labeling as advertising, visitors to the account are first prompted to pay attention to the post at all and then to attach greater importance to the information contained therein in view of the impression of an editorial report than to a post sufficiently labeled as advertising. After all, they only discover the tag and the link to “…” when they move the mouse over the image and click on it. It is precisely the unrecognizable connection between the tag and the published content that is capable of arousing the visitor’s curiosity and persuading him to visit the linked page to find out more. There he is then exposed to the advertising of a third-party company, which is intended to induce him to purchase its products. (see BGH GRUR 2013, 644 – Preisrätselauslobung V, para. 26)

The defendant can counter this with the following passage from the judgment of the BGH “Buchgeschenk vom Standesamt” (GRUR 2009, 606, para. 17)

“When they receive the book, it is not immediately clear to those wishing to get married that it is an advertising publication. However, this does not entail any recognizable disadvantage for them. They are free not to take any further notice of the advertising in the cookbook. The value that the cookbook with its editorial section can have for the recipients is not diminished by the advertisements.”

successfully counter this.

In paragraph 16 of this decision, the fairness of the marginal competitive use of public facilities is justified as follows:

“The advertising in the cookbook is clearly recognizable as such and is not mixed with the (editorial) recipe section.”

However, this does not apply to the defendant’s mail.

f)

The ban imposed does not affect the defendant’s fundamental rights.

It remains to be seen whether blogs on the internet fall within the scope of protection of freedom of the press or broadcasting under the Basic Law (see Schemmer in: BeckOK Grundgesetz, as of August 18, 2018, Art. 5, para. 43).

Art. 5 para. 1 GG does not apply in the present case, as Section 5a para. 6 UWG, on which the prohibition is based, is intended to implement Art. 7 para. 2 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) (see also Köhler in: Köhler/Feddersen/Bornkamm, UWG, 37th ed., Section 5a, para. 7.5)

When interpreting national law that serves to implement directives of Union law, the fundamental rights laid down in Article 51 para. 1 sentence 2 of the Charter of Fundamental Rights of the European Union (hereinafter: EU Charter of Fundamental Rights), the fundamental rights laid down therein must be observed and therefore, insofar as the freedom of expression and reporting is at issue, the relevant provisions in Art. 11 para. 1 and 2 of the EU Charter of Fundamental Rights (BGH GRUR 2012, 74 – Coaching-Newsletter, para. 19; BGH GRUR 2016, 710 – Im Immobliensumpf, para. 45).

According to Art. 11 para. 1 sentence 1 of the EU Charter of Fundamental Rights, everyone has the right to freedom of expression. According to Art. 11 para. 2 of the EU Charter of Fundamental Rights, the freedom and pluralism of the media shall be respected.

Content distributed on the internet is covered by the freedom of the media insofar as the content presented there is characterized by a selection or preparation for an undefined majority of people, insofar as it concerns media-specific mediation services. Furthermore, the freedom of expression of Art. 11 para. 1 of the EU Charter of Fundamental Rights applies. (Jarass, Charter of Fundamental Rights of the European Union, 3rd ed., Art. 11, para. 17).

The freedom of the media also protects the advertising activities associated with media work (Jarass, Charter of Fundamental Rights of the European Union, 3rd ed., Art. 11, para. 18), so that provisions regulating the labeling of advertising can in principle impair the freedom of the media (ECJ GRUR Int 2004, 242, para. 68; Jarass, Charter of Fundamental Rights of the European Union, 3rd ed., Art. 11, para. 23).

However, restrictions on freedom of expression and media freedom are permissible if the provisions of Art. 52 para. 1 of the EU Charter of Fundamental Rights.

The legal basis required under Art. 52 para. 1 sentence 1 of the EU Charter of Fundamental Rights for the prohibition imposed at the request of the applicant is – as can be seen from the above – in place.

The restriction of the defendant’s freedom of expression and media freedom by the contested ban satisfies the principle of proportionality (Art. 52 para. 1 sentence 2 EU Charter of Fundamental Rights).

It meets the objectives of general interest recognized by the Union and the need to protect the rights and freedoms of others. With regard to misleading omissions, the Unfair Commercial Practices Directive sets out a certain amount of basic information that the consumer needs in order to make an informed transactional decision (see Recital 14 of the Directive). The Directive thus follows the requirement of Art. 38 of the EU Charter of Fundamental Rights to ensure a high level of consumer protection. (see also ECJ GRUR Int 2004, 242, para. 70).

With regard to the proportionality of the restriction, it should be noted that the contested restriction of media freedom does not affect the content of the advertising message, as it does not contain a ban, but merely an obligation to label the advertising messages (see also ECJ GRUR Int 2004, 242, para. 72).

2.

The applicant also has a claim against the defendant to cease and desist from presenting content in the course of trade as shown in Annexes A 5 a to c (Section 8 (1) and (3) No. 2, Sections 3, 5a (6) UWG).

In any case, with the tag “…” and the link to the Instagram page of the company “…”, the defendant objectively and directly promotes a third-party company, namely “…”.

Here, too, the defendant cannot invoke the fact that it only published an editorial contribution in which an objective connection with the promotion of the sales of a third-party company is to be denied.

The text contribution deals exclusively with the problems that the production of the posted photo of the defendant holding several balloons in her hand caused in view of the prevailing wind. The text does not address hair care products, training events for hairdressers or the company “…”.

The photo also does not show any hair care products or events that can be attributed to a training event for hairdressers or the company “…”.

Rather, the tag is assigned to the balloons that the defendant is holding in her hand.

The explanation given in the protective brief that the defendant had received the balloons at an event organized by the company … is not even hinted at in the text and picture.

In view of the fact that the defendant admitted that the event was a workshop on social media for hairdressers, in which the defendant participated for a fee, it is highly probable that the intention to promote the sale of goods of the mark … was actually the motive for tagging and linking. This is all the more true as the defendant further admits that the remuneration it received from “…” was also paid for two posts and a story on the defendant’s Instagram account. This is not affected by the fact that the defendant claims to have already fulfilled these obligations with other posts.

For further details, please refer to the comments above.

3.

However, the applicant has no claim against the defendant to cease and desist from presenting content in the course of trade as shown in Annexes A 4 a to c.

a)

The claim for injunctive relief arises neither from § 8 para. 1 and 3 no. 2, §§ 3, 5a para. 6 UWG, nor from § 8 para. 1 and 3 No. 2, Section 3 UWG and No. 11 of the Annex to Section 3 para. 3 UWG, nor from § 8 para. 1 and 3 no. 2, §§ 3, 3a UWG in conjunction with § 6 para. § Section 6 para. 1 no. 1 TMG or provisions of the Interstate Broadcasting Treaty (§ 58, § 7 para. 3 and 7 RStV).

The defendant’s post reproduced in Annexes A 4 a and b is merely an editorial contribution that serves solely to inform and form the opinion of its addressees. An obligation of the defendant to provide this post with a reference to a commercial purpose would violate the defendant’s rights under Art. 11 para. 1 sentence 1, para. 2 of the EU Charter of Fundamental Rights.

aa)

In the text part of the post, the respondent states that she is returning from a trip, needs to rest and is looking forward to returning home. The picture shows the upper body of the defendant, who is wearing a top with the inscription “…”, a brooch and a fanny pack. The defendant has established a connection between the text and the picture by describing her tiredness as “totally …”.

In the picture, the sweatshirt, the brooch and the fanny pack are tagged.

Apart from the product images as part of the defendant’s wardrobe, the tags and the links to the manufacturers or retailers as well as corresponding hashtags, the post does not contain any further information or comments by the defendant on the top, the brooch and the fanny pack.

Such content is covered by the freedom of the media protected by Art. 11 para. 2 of the EU Charter of Fundamental Rights because the defendant’s presentation of certain items of clothing and accessories is characterized by a selection and preparation for an indefinite majority of people and is conveyed in accordance with the specific nature of the Internet medium, specifically the Instagram platform (see Jarass, Charter of Fundamental Rights of the European Union, 3rd ed., Art. 11, para. 17).

It can be assumed that websites such as the account operated by the defendant under “…” are visited because users are also interested in the clothes, shoes and accessories selected and combined by the blogger. The interest of the visitors is not limited to viewing pictures. Naturally, they are at least also interested in copying the selection and combinations or finding inspiration for their own outfit. The information about the brand under which the featured products are offered and where they can be purchased then answers an existing need for information.

The defendant’s explanation that she tags the depicted items of clothing, shoes and accessories in order to anticipate inquiries from visitors to her Instagram page therefore appears plausible. The defendant has also provided examples of such requests (see Annex AG 21 to the defendant’s statement of May 23, 2018).

In this respect, it is no different to fashion magazines, which contain corresponding information on manufacturers and sources of supply for the same reason. This is clearly illustrated by the information provided by the defendant in Exhibit BK 7 to its written submission of December 27, 2018. In addition to the illustrated products, not only the manufacturer of the products is mentioned there, but also internet addresses from which the products can be purchased.

bb)

In contrast to other cases that the Senate has previously had to assess, in particular in contrast to the text and image contributions that were the subject of the Senate’s decision of July 27, 2018, 5 W 149/18 (Annex BE 4 to the response to the appeal), it cannot be assumed with overwhelming probability that the defendant was remunerated or otherwise rewarded for the presentation by the manufacturers or dealers mentioned.

For all of the products mentioned under a), the defendant submitted documents certifying that it purchased the products with its own funds. In addition, the defendant made a credible affidavit at the appeal hearing stating that it had not received any remuneration for the post reproduced in Annexes A 4 a and b, which was referred to by all parties at the appeal hearing as “… posting”, neither from the companies named in the tags nor from third parties.

If, in view of the proof of purchase submitted by the defendant, the claimant argues that it may take some time before he finds out how the defendant’s business works, this does not lead any further.

According to the general rules, the applicant bears the burden of presentation and proof or the burden of prima facie evidence for the facts establishing a claim pursuant to Section 5 para. 6 UWG (see BGH GRUR 2004, 246 – Mondpreise).

This does not deprive the applicant and its members of their rights.

Since the applicant, as an outsider, has no insight into the relationships between the defendant and the manufacturers and distributors of the products presented on its account, while the defendant can easily provide clarification in this respect, the applicant’s burden of presentation and proof can be mitigated by the fact that the defendant has a secondary burden of presentation (BGH GRUR 2007, 251 – Regenwaldprojekt II, para. 31; GRUR 2009, 502 – pcb, para. 17; GRUR 2009, 871 – Ohrclips, para. 27). This applies in any case if the applicant has presented and proven or made credible the facts supporting an infringement of competition law by the defendant beyond mere suspicions (see BGH GRUR 1997, 229 – Beratungskompetenz; BGH GRUR 2007, 251 – Regenwaldprojekt II, para. 31).

The defendant has satisfied a secondary burden of proof.

With regard to the sweatshirt, the applicant has already explained in the statement of claim that the tag refers to the brand of the item of clothing; with regard to the brooch and the fanny pack, she has stated in each case that these are references to the stores in London and New York in which she purchased the items. In addition, the defendant submitted payment receipts for these items – as stated above – and argued that she had never had an advertising contract with one of the companies mentioned and finally made it credible that she had not received any remuneration.

If the opposing party of the party with the burden of proof meets its secondary burden of proof, the further presentation of evidence is in any case the responsibility of the party with the burden of proof. The fact that it is not possible for the party with the burden of presentation and proof to provide a more detailed explanation of an event belonging to the opposing party’s sphere of perception does not lead to a reversal of the burden of proof, but in principle only to increased requirements for the opposing party’s burden of explanation. (GRUR 2009, 502 – pcb, para. 17)

The (low) journalistic content of the objectionable posts, other advertising activities for third parties in social media for a fee, public reporting on the professional blogging activities of the claimed party and a link to third-party online stores, whether directly or with intermediate steps, are indications which, when viewed as a whole, can not only give rise to the suspicion that advertising is involved, but even a predominant probability of advertising activity. This applies in particular if the defense argument is so unsubstantiated that it does not eliminate obvious or even obvious possibilities of a consideration for the promotion of competition. (see decision of the Senate of July 27, 2018, 5 W 149/18)

However, the defendant has refuted the evidence available here with her affidavit and the evidence submitted.

cc)

On the one hand, the question then arises as to whether the limit to advertising is exceeded solely because the defendant provides links to the Instagram accounts of manufacturers or retailers, via which the user can then – at least in part – also access online stores.

This question must be answered in the negative.

The links supplement the defendant’s post on Instagram by providing further information (see BGH GRUR 2004, 694 – Schöner Wetten, para. 24) and not just the purchase of an item.

This applies in particular taking into account the environment in which the defendant published the contested contribution.

The “Instagram” service is referred to as a social network.

In any case, the purpose of such a network is also to create connections between users. Visitors to an Instagram account not only expect information there that requires further research if they want to achieve their goal, but also a connection to the subject of the information they are looking for.

However, the link is also no more than a minor shortcut or facilitation of the way to reach this destination via a search engine.

The boundary between a brand name that is unobjectionable with regard to Section 5a para. 6 UWG in the context of an expression of opinion or an editorial contribution on the one hand and advertising that is to be identified on the other hand by linking to an Instagram account of the user of the brands is in any case not appropriate and does not do justice to the reality of life on the Internet if the consumer is not directly enabled to purchase the product via the link. Probably every current word processing program automatically designs the entry of an Internet address as a link.

dd)

The question also arises as to whether each individual Instagram account of the applicant must be labeled as serving commercial purposes without having to go into the examination of the editorial content of the individual post because other posts have served commercial purposes of third parties or because the account as a whole, and thus each individual post, has served the self-promotion of the respondent.

This question must be answered in the negative with regard to the defendant’s fundamental rights under Article 11 of the EU Charter of Fundamental Rights.

According to Art. 52 para. 1 sentence 2 of the EU Charter of Fundamental Rights, restrictions on fundamental rights may only be imposed, subject to the principle of proportionality, if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

However, there is no reason to regard every or even just every statement in connection with consumer goods made by a person who describes themselves or allows themselves to be described as an “influencer” or aspires to be able to describe themselves as an “influencer” as advertising with an accompanying labeling obligation, regardless of the specific content and the particular circumstances.

Conversely, it can be inferred from the above statements on the competitive relevance of the breach of an obligation to label advertising as such that the labeling of a contribution as advertising suggests to the public that they should pay no or only superficial attention to this contribution and be critical of the information and statements contained therein and attach only minor importance and attention to them.

An influencer’s desire to generate advertising revenue does not justify obliging them to provide every statement with a reference with which the public associates a subordinate or lesser value of the contribution. In this respect, nothing else can apply to an influencer than to other media companies, which are consistently financed at least by advertising revenue and are particularly attractive to clients if they reach a large number of people, regardless of whether they are referred to as readers, viewers or followers.

A differentiation according to the subject matter of the editorial reporting or the expression of opinion is not compatible with freedom of expression and media freedom. Reports on fashion trends are no less worthy of protection than reports on social and political issues.

The aim of protecting followers of a blog such as the one operated by the defendant, who are generally interested in consumption anyway, from making an inadequately informed business decision can be easily achieved by labeling the posts as serving commercial purposes for which the defendant has directly or indirectly received a fee or a monetary benefit. If posts are marked as serving commercial purposes, the visitor to the account recognizes that the owner of the account is active as an advertiser even if other posts containing expressions of opinion or editorial content are not marked.

Moreover, the consistent labeling of all posts by an “influencer”, as the defendant has practiced since the enforcement of the preliminary injunction until the appeal hearing, so that photos of her cats also bear the label “advertising”, is unlikely to serve the interests of consumers. The objective of the labeling obligation to protect the consumer from uninformed business decisions is difficult to implement if it leads to recognizably absurd consequences in practice, so that the information is no longer taken seriously.

ee)

This result is also in line with the assessments in the current guidelines of the media authorities “Advertisements in social media offerings”, published in November 2018.

A look at private TV stations shows that the procedure is ultimately no different there. The programming that viewers receive free of charge is financed by advertising contracts. The corresponding advertising is labeled as such, but the programming is not, even though the broadcaster has an interest in retaining viewers by making the programming attractive and thus increasing the value of the slots for advertising. This parallel relationship may not apply to all program components, but it may apply, for example, to programs in which new car models are presented.

b)

The claim for injunctive relief also does not arise from §§ 8 para. 1 and 3 no. 2, §§ 3, 5 para. 1 sentence 1 and 2 no. 1 and no. 3 UWG.

Contrary to the applicant’s opinion, the defendant does not actively pretend that the post or her Instagram account (which is not the subject of the proceedings in its entirety anyway) is private.

It is not possible to understand which elements of the defendant’s contributions the applicant wishes to use to establish active deception.

The number of so-called followers of the defendant (more than 50,000) is openly recognizable.

The defendant has at least attempted to make its cooperation with other companies recognizable in individual contributions by referring in the headline to a “Paid partnership with …” (cf. Annex AG 13 to the protective brief).

Some of the text contributions refer to the defendant’s activities as an influencer and her cooperation with commercial enterprises (cf. Annex AG 13 to the protective brief). There are also at least references to such cooperations in one of the contributions at issue in the proceedings (cf. Annex A 6 a: “Whenever I get to choose jobs, I choose my favorite airline.”).

The content of the defendant’s text contributions is essentially limited to information about her whereabouts and her destination, anecdotal descriptions of experiences and superficial information about her current state of mind. They are not recognizably different from, for example, messages from the editorial staff of a women’s magazine, whose members apparently also took part in the “press trip” financed by “…”, which is the background to the defendant’s contribution submitted as Annex A 6 a and b (see Annex AG 19 to the defendant’s statement of 11 May 2018).

c)

The assessment made above under 3.a) applies accordingly to the facts of Section 6 para. 1 no. 1 TMG and the Interstate Broadcasting Treaty (§ 58, § 7 para. 3 and 7 RStV).

The decision on costs is based on § 97 para. 1, § 92 para. 1 ZPO.

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