Tenor:
The defendant is advised that the Senate intends to dismiss its appeal against the judgment of the Regional Court – Chamber for Commercial Matters – Göttingen of November 7, 2018 pursuant to Section 522 para. 2 ZPO.
Reasons:
I.
1. the appeal of the defendant in the injunction (hereinafter: defendant) obviously offers no prospect of success (Section 522 (2) sentence 1 no. 1 ZPO). The Regional Court rightly granted the application of the plaintiff in the injunction (hereinafter: plaintiff) for a preliminary injunction. In contrast, the defendant’s grounds of appeal did not point out any aspects that would lead to a different assessment of the factual and legal situation.
The preconditions required under Sections 935 et seq. ZPO for the issuance of a temporary injunction are met.
a) The existence of grounds for an injunction (Sections 920 (1), 936 ZPO) is presumed in the case in dispute pursuant to Section 12 (2) UWG. 2 UWG and also results from the chronological sequence of events, according to which the plaintiff became aware of the defendant’s challenged Instagram presence on September 4, 2018 and the application for a preliminary injunction was received by the court a short time later, namely on September 25, 2018.
b) In addition, the plaintiff has also substantiated the existence of a claim for an injunction (Sections 920 (2), 936 ZPO).
In accordance with §§ 3 para. 1, 5 a Abs. 6 UWG in conjunction with § 8 para. 1 sentence 1 and para. 3 No. 2 UWG, the plaintiff can demand that the defendant cease and desist from the advertising complained of. According to § 5 a Abs. 6 UWG, within the meaning of § 3 para. 1 UWG, anyone who fails to disclose the commercial purpose of a commercial act is acting unfairly if this is not directly apparent from the circumstances and the failure to disclose is likely to induce the consumer to make a commercial decision that he would not have made otherwise.
In the case in dispute, the necessary conditions for a claim are met; in particular, contrary to the view expressed by the defendant in the grounds of appeal, there is neither a commercial act by the defendant nor its suitability to induce the consumer to make commercial decisions that would otherwise not have been made. In detail:
aa) According to the definition in Section 2 para. 1 No. 1 UWG, a commercial act is any conduct of a person for the benefit of his own or another person’s business before or after the conclusion of a transaction which is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services.
What is required here is an objective connection in the sense that the act is objectively suitable for promoting the sales or purchases of one’s own or another company. Although an actual intention to promote competition is not required, the act in question must at least have the aim of influencing the consumer’s business decisions (see Köhler in: Köhler/Bornkamm/Feddersen, UWG, 36th edition, Section 2 para. 45 and 46; Ernst in: Ullmann, jurisPK – UWG, 4th edition, Section 2 para. 19). If the information complained of is objectively suitable for promoting competition, there is a presumption of a corresponding intention on the part of the defendant (see BGH, judgment of February 13, 2003 – I ZR 41/00, GRUR, 2003, 800 – Schachcomputerkatalog; Ernst, loc. cit., § 2 para. 21).
(1) Here, there can be no doubt as to the objective suitability of the challenged act to promote the sales of third parties, namely certain manufacturers of clothing and shoes. The challenged internet presence of the defendant is designed in such a way that when the user “clicks” on the images presented, the names/brands of the manufacturers of the clothing worn by the defendant appear. If the user then “clicks” on the relevant names/brands, he is directed to the corresponding Instagram page of the respective manufacturer, where further links, for example to a store of the manufacturer, are embedded. This networking is likely to increase the sales of the manufacturers in question by ensuring that followers of the defendant follow the link and ultimately purchase the products depicted or other products of the manufacturer.
(2) The defendant has not rebutted the presumption of the subjective objective of influencing consumers’ decisions. It claims that it did not install the links with the aim of advertising the respective companies behind them, but to respond to a large number of inquiries from its followers. Apart from the fact that this intention has not been made credible, an overall consideration of the objective circumstances speaks for an advertising objective of the defendant.
(a) The question of whether an act primarily serves to promote one’s own or another party’s sales or purchase of goods or services or other objectives must be assessed on the basis of an evaluation of all the circumstances of the individual case. This depends not only on the actual act in question, but also on the accompanying circumstances. The fact that the party acting has its own economic interest in influencing the business decisions of consumers or other market participants is only one – albeit decisive – indication (among several) for the existence of a commercial act within the meaning of Section 2 para. 1 No. 1 UWG (see BGH, judgment of 11.12.2014 – I ZR 113/13, GRUR 2015, 694 – Bezugsquellen für Bachblüten; Köhler loc. cit., Section 2 para. 56). Therefore, a commercial act can also be considered if there is no remuneration, but this is expected (see also Köhler, loc. cit., Section 5 a para. 7.35 and 7.71). Since the existence of a business connection or a concrete granting of an advantage cannot be proven on a regular basis, other aspects also become more important, such as whether there is a journalistic reason for the form of presentation (cf. OLG Düsseldorf, judgment of 31.10.2006 – 23 U 30/00, OLGR Düsseldorf 2007, 258) or whether there is a lack of a factual need for information which is to be satisfied (cf. OLG Düsseldorf, judgment of 17.04.1986 – 2 U 179/85, NJW-RR 1986, 1432; see also Ahrens, GRUR 2018, 1211 (1215)).
(b) Measured against this, an overall assessment of the objective circumstances shows the existence of a commercial act by the defendant in favor of a sales promotion of third-party companies.
Such a finding is already supported by the fact that the defendant indisputably acts commercially in the context of its Instagram presence and also seeks to promote the sale of its own offer on its commercial website www…de, where it provides offers on the topics of nutrition, fitness and coaching. According to life experience, it seems far-fetched that references made in such a commercial environment to the offers of third-party companies should be of a purely private nature.
In addition, it is a website on Instagram. Instagram is the most popular social media platform for the use of brand PR. In 2017 alone, a budget of over 560 million euros was invested there. In addition to the wide age range of its users, the main reasons for Instagram’s popularity are its global reach and ease of use. It has over 500 million users worldwide, 18 million of which are in Germany alone (cf. Lettmann GRUR 2018, 1206 (1207)). As can be seen from Exhibit AG 1 (p. 169 of the file), Instagram also expressly provides for “branded content” and creates the framework conditions for this. In this context, it is also relevant that the defendant describes itself as a so-called influencer, which usually refers to well-known and popular people who are paid to be depicted with a certain product (see Köhler, loc. cit., § 5 a para. 7.80 a). Accordingly, the defendant is also quite prepared to accept fees from third-party companies for product placements, as the example of “r.” shows. It merely differentiates inappropriately according to whether it receives a fee or not and believes that advertising does not exist as long as no material consideration is provided by the company concerned. However, the defendant overlooks the fact that, as explained above, although the receipt of consideration is an indication of a commercial act, it is not the only decisive factor. Even the expectation, which is obvious under the circumstances here, of arousing the interest of third-party companies in influencer marketing in cooperation with the defendant and generating sales in this way is sufficient.
In addition, the defendant’s posts lack any editorial reason for the simultaneous product advertising. Even if one assumes that, according to the defendant’s submission, there had been numerous inquiries from her followers about the clothing she wore, which she wanted to anticipate, the design of the Instagram presence actually created by her would go far beyond the information needs of any followers formulated in this way. The defendant did not report in an article about inquiries from its followers about a particular item of clothing and did not mention the manufacturer’s name in this context, nor did it limit itself to providing editorial information about the manufacturers with reference to such inquiries. Instead, when the user “clicks” on the images she has posted, the manufacturer’s name appears, which is an advertising-effective production of goods similar to an online catalog. A further “click” then establishes contact with the respective manufacturer, with the subsequent possibility of purchasing the product. In this way, the defendant becomes the link between the manufacturer and the follower.
bb) Finally, the suitability of the lack of identification of the commercial purpose of the challenged commercial act, which is not directly apparent from the circumstances, to induce the consumer to make commercial decisions that would otherwise not have been made is also not to be denied.
It is precisely the purpose of the defendant’s advertising to persuade her followers to purchase corresponding items of clothing from the manufacturers concerned, which they would not otherwise have purchased or would not have purchased at that time. The consumers or followers of the defendant see the defendant as a role model and follow her example when selecting clothing as if it were a recommendation, to which they attribute greater objectivity and neutrality due to its seemingly private nature than would be the case with appropriately disclosed, i.e. labeled, advertising that does not conceal the commercial purpose from consumers.
2. the other requirements of section 522 para. 2 sentence 1 ZPO are also met, insofar as they are relevant at all in the proceedings for the issuance of an interim injunction. In particular, an oral hearing is not required, from which no further findings are to be expected (Section 522 (2) sentence 1 no. 4 ZPO).
II.
The defendant has two weeks to respond. The Senate expressly suggests a withdrawal of the appeal and points out as a precautionary measure that the court costs of the appeal proceedings will be reduced by half in the event of a withdrawal of the appeal (No. 1222 KV GKG).