Tenor:
1.)
On the plaintiff’s appeal, the judgment of the 10th Chamber for Commercial Matters of the Regional Court of Frankfurt am Main of December 29, 2017 is partially amended.
a)
The defendant is further ordered to refrain from advertising
in the course of trade for competitive purposes to end consumers for printed products in distance selling with price quotations without clear and/or without sufficient information about the shipping costs incurred, as shown in Annex K 1, subject to a fine of up to € 250,000, or imprisonment for up to six months, in the event of repeated infringement up to a total of two years.
b)
The defendant is further ordered to provide the plaintiff with information as to the extent to which it has made the payments referred to in para.
1a) of the judgment and under no.
I. of the regional court judgment, stating the duration of the advertising and the orders received using this advertising since October 13, 2016.
c)
It is further established that the defendant is obliged to compensate the plaintiff for the damage caused to the plaintiff by the actions described in para.
1a) of the judgment and under no.
I. of the Regional Court’s judgment and will continue to incur in the future, namely since October 13, 2016.
2.)
Orders the defendant to pay the costs.
3.)
The judgment is provisionally enforceable.
The defendant may avert enforcement by providing security in the amount of € 14,000 unless the plaintiff first provides security in the same amount.
Reasons
I.
The plaintiff is asserting claims for injunctive relief under competition law against the defendant as well as claims for information and damages together with warning costs.
By judgment of 29.12.2015, to which reference is made pursuant to Section 540 para. 1 ZPO, ordered the defendant to cease and desist on a total of 7 points due to anti-competitive conduct, but dismissed the action with regard to an 8th claim and with regard to the claims for information and damages for all claims. With regard to the dismissed claim 1a, the Regional Court stated that it was inadmissible. The wording “without timely information” was too vague. It remained completely open as to what was meant by “timely” or “sufficient”. This is subject to interpretation without any apparent restriction. The reference to the specific form of infringement does not change this either, as the “as evident from” part merely refers to a sub-case of the main part without specifying it in more detail with regard to the characteristics of the conduct to be prohibited. The phrase “without sufficient information” would shift the entire dispute as to whether later alleged forms of infringement fell under the prohibition sought in the main part of the injunction application to the enforcement proceedings, which was not reasonable for the defendant. With regard to the subsequent claims, the defendant lacked passive legitimacy, as the infringements had been committed by employees and there was no legal basis for attribution, in particular § 8 para. 2 UWG is not applicable to subsequent claims.
The plaintiff’s appeal is directed against this, with which it continues to pursue its first instance claim, insofar as this was rejected.
In the appeal proceedings, both parties repeat and expand on their submissions at first instance; for details, reference is made to the following statements under II. as well as the exchanged written submissions and their annexes.
The applicant claims that the Court should:
The judgment of the Regional Court is amended to the effect that the defendant is also sentenced as follows:
I.
The defendant is prohibited from advertising in the course of trade for competitive purposes to end consumers for printed products in distance selling:
with price details without clear and/or without sufficient information about the shipping costs incurred, as can be seen from Annex K1 .
K1
alternatively
with prices without information on the shipping costs incurred, as shown in Annex K1
II.
The defendant is ordered to provide the plaintiff with information on the extent to which it has carried out the advertising measures referred to in point I of the application, stating the duration of the advertising and the orders received using this advertising since 6 months prior to the lis pendens.
III.
It is established that the defendant is obliged to compensate the plaintiff for the damage which the plaintiff has suffered and will suffer in the future as a result of the advertising measures described under Z. I of the application and which will be incurred in the future, for 6 months prior to lis pendens.
The defendant requests,
dismiss the appeal.
She defends the judgment of the regional court.
II.
The admissible appeal is successful on the merits. Claim I.) proves to be admissible and well-founded. The plaintiff is also entitled to the subsequent claims sought.
1) The application under I. is admissible, in particular sufficiently specific.
a) According to Section 253 II No. 2 ZPO, an application for prohibition may not be worded so vaguely that the subject matter and scope of the court’s authority to decide (Section 308 sentence 1 ZPO) are not clearly delineated, the defendant is therefore unable to defend himself exhaustively and it is ultimately left to the enforcement court to decide what the defendant is prohibited from doing (cf. therefore cannot exhaustively defend itself and ultimately the decision as to what the defendant is prohibited from doing would be left to the enforcement court (cf. BGH GRUR 2005, 692 [BGH 04.05.2005 – I ZR 127/02] – “statt”-Preis; BGH GRUR 2003, 958 [BGH 17.07.2003 – I ZR 259/00] – Paperboy). For this reason, applications for injunctions containing formulations such as “unambiguous” and “unmistakable” have repeatedly been deemed too vague and therefore inadmissible in case law (see BGH, GRUR 1978, 652 – mini-Preis; GRUR 1978, 649 – Elbe-Markt; GRUR 1979, 116, 117 – Der Superhit).
b) The application is directed against the specific form of infringement (Annex K 1), which is objected to because, in the plaintiff’s opinion, it does not contain clear or otherwise sufficient information about the shipping costs. Under these circumstances, the abstract descriptive part only clarifies the aspect under which the specific form of infringement is attacked. However, the characteristic feature of the form of infringement challenged under this aspect is that it does not contain any information about the shipping costs. Therefore, the aim of the application directed against this form of infringement is not to issue a prohibition that covers all cases of insufficient information on shipping costs. Only those offers are to be prohibited which, in the same way as the challenged specific form of infringement (including core variations), completely lack information on shipping costs (cf. on the admissibility of corresponding claims in such cases BGH GRUR 2005, 692 [BGH 04.05.2005 – I ZR 127/02] – “statt”-Preis, para. 18).
2.) Claim I. is also well-founded in this respect. The plaintiff is entitled to injunctive relief under §§ 8 I, § 3a UWG i.V.m. § 1 II, VI PangV and §§ 5, 5a III No. 3 UWG.
a) The parties were and are competitors (Section 2 I No. 3 UWG).
The Regional Court rightly assumed the existence of a competitive relationship at the time of the infringement. Like the defendant, the plaintiff sells posters, photo calendars and various photo and printing products. The internet presence of the plaintiff presented in Annex K 10 and K 10-1 – the authenticity of which is not disputed by the defendant – leaves no doubt that the parties were direct competitors. It is true that the defendant denied that the printouts were dated 31.05.2017. However, this does not constitute an admissible denial. The defendant cannot limit itself to disputing the appearance of its own website on a particular day. Due to the fact that these are facts from its sphere of perception and responsibility, it would have to explain in more detail what its website actually looked like at the alleged time.
With regard to the injunctive relief directed to the future, however, the competitive relationship must have existed not only at the time of the infringement, but also at the time of the conclusion of the oral hearing (BGH GRUR 1995, 697, 699 [BGH 12.07.1995 – I ZR 85/93] – FUNNY PAPER). The defendant has argued that an X-search for the company name “A” only leads to A … SE, trading under the plaintiff’s address. However, this submission is not relevant. The defendant has not argued that anything has changed in the design of the site, in particular in the imprint, which is decisive for the responsibility for the site.
b) Section 3a UWG is generally applicable in addition to Section 5a UWG. The requirements of the unfairness element regulated there, that the consumer needs the material information withheld from him “depending on the circumstances, in order to make an informed decision” and “the withholding of which is likely to induce the consumer to take a transactional decision that he would not have taken otherwise”, constitute additional elements of the offense pursuant to Section 5a para. 2 sentence 1 no. 1 and 2 UWG constitute additional elements of the offense, which as such must be examined independently (cf. BGH, GRUR 2017, 922 [BGH 02.03.2017 – I ZR 41/16] para. 31 – Complete kitchens; GRUR 2018, 438 [BGH 05.10.2017 – I ZR 232/16] para. 36 – Energy certificate; GRUR 2018, 324 [BGH 18.10.2017 – I ZR 84/16] para. 24 – Motor vehicle advertising). Nothing else applies to the requirement of perceptibility within the meaning of Section 3a UWG. If the infringement of a market conduct regulation consists of withholding material information from the consumer, this infringement is only appreciable within the meaning of Section 3a UWG if, depending on the circumstances, the consumer needs the withheld material information to make an informed decision and its withholding is likely to cause the consumer to make a transactional decision that he would not have made otherwise.
c) There is a violation of Section 3a UWG in conjunction with Section 1 II, VI PangV. § Section 1 II, VI PangV.
aa) A breach of the Price Indication Regulation does not generally occur if only the price of a product is stated on a website without indicating whether and, if so, to what extent additional delivery and shipping costs are incurred. In the mail order business, the consumer expects that shipping costs may be incurred in addition to the price of the goods. Therefore, it generally satisfies the requirements of Section 1 VI PAngV if the delivery and shipping costs to be stated in accordance with Section 1 II 1 No. 2 PAngV are stated immediately, easily recognizable and clearly perceptible on a separate website, which must be called up before the order process is initiated by placing the goods in the virtual shopping cart (cf. BGH GRUR 2010, 1110 [BGH 18.03.2010 – I ZR 16/08], para. 22 f. – Froogle; BGH, GRUR 2008, 84 [BGH 04.10.2007 – I ZR 143/04] para. 31 and 33 – Shipping costs; GRUR 2010, 248 [BGH 16.07.2009 – I ZR 50/07] para. 24 et seq. – Camera purchase on the Internet).
The amount of the delivery and shipping costs also often depends on the scope of the customer’s total order. Therefore, it is also sufficient with regard to Section 1 II 2 PAngV to include the note “plus shipping costs” in the advertising for the individual product. shipping costs” in the advertising for the individual product if a window with a clear and comprehensible explanation of the general calculation modalities for the shipping costs opens when this notice is clicked on or accessed and, in addition, the actual amount of the shipping costs incurred for the purchase is shown separately in the price list when the virtual shopping cart is accessed (BGH, GRUR 2010, 248 [BGH 16.07.2009 – I ZR 50/07] para. 27 – Camera purchase on the Internet).
However, the required information may not be given to the consumer only after he has already initiated the ordering process by placing the goods in the virtual shopping cart (BGH GRUR 2010, 248 [BGH 16.07.2009 – I ZR 50/07], para. 24 f. – Kameraakauf im Internet; BGH, GRUR 2008, 84 [BGH 04.10.2007 – I ZR 143/04] para. 33 – Shipping costs). The consumer does not need the information under the Price Indication Regulation only in the course of the order, but already when he takes a closer look at the offer. According to Art. 7 II of Directive 2005/29/EC, the essential information for the consumer must be provided “in good time”. This also applies to the information required in the case of an invitation to purchase within the meaning of Art. 7 IV lit. c of Directive 2005/29/EC, which includes the information required under the Price Indication Regulation. As follows from the purpose of Art. 7 of the Directive and the systematic context of paragraphs 1 and 2 of this provision, the information must be provided in sufficient time to enable the average consumer to make an “informed transactional decision”. According to. Art. 7 I of the Directive, the limitations of the communication medium must be taken into account.
bb) The defendant does not meet these requirements for informing the consumer on its website, as it does not contain any reference to shipping costs.
After placing an order in the defendant’s online store, the customer does not make a final decision to purchase a product until he has entered his personal data and confirmed the defendant’s general terms and conditions. sends his order. At this point, the shipping costs are already disclosed. However, this does not change the fact that a product is only placed in the virtual shopping cart if the customer has previously taken a closer look at it and has at least provisionally decided to purchase it. Even placing the product in the shopping cart is a commercial decision on the part of the consumer, for which he needs all essential information. This includes both the indication of delivery and shipping costs and, as follows from Art. 5 II of Directive 2000/31/EC on electronic commerce, the indication of VAT included in the purchase price (cf. BGH, GRUR 2008, 532 [BGH 04.10.2007 – I ZR 22/05] para. 28 – VAT notice).
According to the facts of the judgment, no page with the required information appeared before the order was initiated; there was no information window. The defendant had claimed in the statement of defense and in the duplicate that it indicated the shipping costs on its website by means of an asterisk. However, Annex K 1 does not show such an asterisk. The defendant has not claimed that the Annex K 1 submitted by the plaintiff is manipulated, so that the Senate must assume that there was no asterisk.
Insofar as the defendant points out that page 5 of Annex K 1 only shows half of the website as evidenced by the scroll bar, this is correct, but does not change the legal assessment. This would only be of significance if the lower – not shown – half contained information on shipping costs. However, the defendant does not claim this in a substantiated manner.
3) The appeal is also successful insofar as the plaintiff pursues the subsequent claims for information and damages for all acts of infringement pending at first instance that were dismissed at first instance. The liability of the defendant follows from § 831 BGB.
a) The Regional Court rightly pointed out that Section 8 II UWG only applies to claims for injunctive relief. However, the provision contained in § 8 II UWG does not preclude the application of § 831 BGB. The provision of § 8 II UWG is intended to prevent the owner of a company from being able to hide behind third parties dependent on him and therefore establishes an additional independent claim against the owner of the company (cf. BGH, GRUR 1995, 605 [BGH 05.04.1995 – I ZR 133/93] – Franchisee; Köhler/Bornkamm/Feddersen-Köhler/Feddersen, 37th ed. 2019, UWG § 8 Rnr 2.32-2.34; Harte-Bavendamm/Henning-Bodewig/Goldmann, 4th ed. 2016, UWG Section 8 para. 255-259). According to its wording, it applies to claims for injunctive relief and removal and, according to its meaning and purpose, also covers claims for information that serve to enforce these defensive claims. In contrast, it does not apply – unlike the otherwise comparable provisions in Section 13 VII and Section 128 III MarkenG – to claims for damages under Section 9 UWG and related claims for information (cf. BGH, GRUR 2006, 426 [BGH 09.02.2006 – I ZR 73/02] para. 24 – Direktansprache am Arbeitsplatz II. A blocking effect of Section 8 II UWG would run counter to the declared purpose of the provision of Section 8 II UWG to give creditors of competition law claims a stronger position (BGH GRUR 2012, 1279 [BGH 25.04.2012 – I ZR 105/10], para. 43 – The big puzzle book).
b) The offense was also committed by a vicarious agent.
A person is appointed to perform a task if he has been assigned an activity with the knowledge and will of the principal, in which he is bound by instructions, i.e. dependent on the principal’s instructions. Aides bound by instructions primarily and typically include employees. According to the overall circumstances, it can be assumed prima facie that either the managing director of the defendant or one of its employees initiated or approved the internet presence according to Annex K 1. It would therefore have been up to the defendant to present a special constellation deviating from this, e.g. the commissioning of external third parties. Despite the advice of the Senate, the defendant did not make any submissions in this regard.
c) The requirements for the right to information and damages are also met. In the judgment, the Regional Court affirmed the claims for injunctive relief with detailed reasons as to why there were violations of the Unfair Competition Act in each case. In this respect, the Senate fully agrees with the reasoning, to which the defendant has not objected.
The (low) probability of damage occurring required for the claim for damages is also present.
4) The decision on costs follows from Section 91 ZPO. The decision on provisional enforceability is based on sections 708 no. 10, 711 ZPO.
There was no reason to allow the appeal, as no grounds for admission were presented or otherwise apparent.