Tenor
1.
The case law of the Federal Constitutional Court (GRUR 2018, 1288 – Die F.-Tonbänder), according to which the principle of procedural equality of arms regularly requires that the defendant in interim injunction proceedings be granted a hearing before an injunction is issued, also applies to disputes under competition law.
2.
A judgment issued after an oral hearing on the objection (Sections 924, 936 ZPO), which confirms the order (Sections 925, 936 ZPO), cannot be successfully challenged on appeal with reference to the violation of the right to be heard on the occasion of the order, as the challenged decision is no longer based on the original violation.
Reasons
2
I.
3
The presentation of the facts of the case is excluded pursuant to §§ 542 para. 2, 313 a para. 1 sentence 1 ZPO.
4
II.
5
The admissible appeal of the defendant in the injunction is only partially justified – namely insofar as it concerns the application under I. 4 from the application of 28.09.2017.
6
1.
7
Contrary to the opinion of the defendant, the preliminary injunction is not to be lifted in its entirety because the Regional Court issued an injunction without hearing the defendant – who had indisputably not been warned beforehand – and thus violated its fundamental right to procedural equality of arms under Art. 3 para. 1 i.V.m. Art 20 para. 3 GG was violated.
8
a)
9
According to the case law of the Federal Constitutional Court (GRUR 2018, 1288 – Die F.-Tonbänder; see GRUR 2018, 1291 – Steuersparmodell eines Fernsehmoderators), it follows from the principle of procedural equality of arms that a court must (also) grant the opposing party the right to be heard before making an affirmative decision on the application of a party in a civil law dispute: The necessity of surprising or taking the opposing party by surprise cannot be assumed as a rule when asserting claims for injunctive relief in press and commentary law. Even if a need for urgency is often to be recognized in this respect, this does not result in an interest worthy of protection that the assertion of the injunctive relief claim as such remains hidden from the debtor. At least in cases involving a statement that has already been published, there is generally no reason to refrain from hearing a defendant and giving him the opportunity to make a statement before issuing a preliminary injunction. According to the principle of procedural equality of arms, an affirmative decision on an application for an injunction can only be considered if the opposing party has previously had the opportunity to respond to the arguments asserted in the application. A distinction can be made according to the type and timing of the opportunity to be heard and the circumstances of the individual case. The possibility of allowing the opposing party to comment on the application for an injunction prior to the proceedings must also be taken into account if it is ensured that such statements are available to the court in full. Under certain conditions, the possibility of responding to a warning preceding the injunction proceedings can also be taken into account. A distinction must be made between all of this and the question of when a decision on the issuance of an interim injunction can be made without an oral hearing (Section 937 (2) ZPO).
10
The above principles are to be transferred to the procedural law of unfair competition (see Schlüter, in: GRUR-Prax 2018, 530). The procedural situation for which the Federal Constitutional Court has developed the aforementioned criteria does not differ from the present situation. Even in competition proceedings, the court may regularly only refer the defendant to a subsequent hearing if the purpose of the interim legal protection proceedings would otherwise be prevented in the individual case. This applies all the more if – as here – the injunction of statements in an already published press release is asserted on the basis of unfair competition law.
11
b)
12
Accordingly, in the absence of a pre-litigation warning to the defendant, the Regional Court should have first granted the defendant a hearing before issuing the order. The plaintiff in the injunction (also in the appeal instance) did not point out any reasons that would have prevented the defendant in the injunction from having the opportunity to comment even at short notice. In view of the fact that the press release at issue had already been published at the time the application for the preliminary injunction was filed, no such reasons can be identified. The fact that the cited decisions of the Federal Constitutional Court had not yet been issued at the time the injunction was issued is irrelevant for the legal assessment.
13
c)
14
However, it does not follow from all of the above that the Regional Court’s violation of the right to be heard when issuing the order constitutes an incurable procedural error which per se leads to the annulment of the order or even the judgment of the Regional Court – following an objection by the defendant to the injunction – following an oral hearing.
15
aa)
16
Since the Regional Court confirmed the preliminary injunction, taking into account the entire (first instance) factual and legal submissions of the defendant, the original violation of the right to be heard was cured by the Regional Court itself:
17
After the defendant in the injunction order pursuant to sec. §§ Sections 936, 924 para. 1 ZPO with the legal remedy of an objection, the defendant was already given the opportunity in the first instance to present all of its factual and legal arguments in the preparatory pleadings and at the hearing on the objection (Section 924 (2) sentence 2 ZPO). The Regional Court then ruled on the legality of the defendant’s objection in a final judgment, confirming the injunction (Section 925 ZPO). This final judgment of the Regional Court confirming the preliminary injunction was consequently issued as such – which the defendant in the injunction does not doubt – in compliance with its right to be heard. In this respect, it should be noted that the review of the legality of a preliminary injunction is always carried out without any obligation to the previous decision and is not limited to clarifying the question of whether it was rightly issued at the time. Rather, in response to the objection, the court must examine whether, at the solely relevant time of the conclusion of the oral hearing on the objection, all requirements for the issuance of an interim injunction are met (BFH NJW 2004, 2183; OLG Cologne WRP 1994, 50; MünchKommZPO/Drescher, 5th edition, 2016, Section 925 para. 3 ff; Zöller/Vollkommer, ZPO, 31st edition, Section 925 para. 5).
18
The Regional Court observed the above principles and consequently subsequently granted the defendant in the injunction proceedings the right to be heard in full, so that in any case the final judgment, which is the sole subject of the proceedings in the appeal instance, is not based on a violation of the principle of the right to be heard.
19
bb)
20
The provision of Section 321a ZPO also proves that violations of the right to be heard can be remedied by the iudex a quo itself. It is true that this is a legal remedy of its own kind, which can be used to assert violations of the right to be heard in decisions that cannot otherwise be contested. However, it is a manifestation of the general principle that violations of the right to be heard can be remedied by the specialist courts.
21
cc)
22
Apart from this, the defendant’s appeal against the final judgment of the Regional Court can only be based on the fact that this decision is based on a violation of the law (Section 546 ZPO) or that facts to be taken as a basis in accordance with Section 529 ZPO justify a different decision. On the other hand – analogous to the situation in opposition proceedings – it is not necessary to examine “in isolation” in the appeal instance whether the order confirmed by the final judgment was lawful (in particular free of procedural errors) at the time. Insofar as the defendant in the injunction bases its appeal with reference to the violation of the right to be heard when the injunction was issued, the necessary “basis” of the contested decision on this – original – procedural error is lacking. A violation of the law must – as is also evident from Section 520 para. 3 sentence 2 no. 2 ZPO – be causal for the result of the decision in order for the appeal to be successful. In the event of a violation of procedural standards, it depends on whether the decision would have been more favorable to the appellant without the violation of the law (MünchKommZPO/Rimmelspacher, 5th edition, 2016, Section 513 Rn 12).
23
Moreover, as follows from Section 538 para. 1 sentence 2 no. 2 ZPO, the mere fact that a first instance judgment suffers from a significant procedural error – which is also recognized to include violations of the right to be heard (instead of all: BGH WM 2013, 1210) – does not in itself entitle the court to amend or even set aside the contested decision. The court of appeal may only refer the case back to the court of first instance, to the extent that further hearings are necessary, by setting aside the judgment and the proceedings, if an extensive or time-consuming taking of evidence is also necessary. In addition, a reversal/remittal pursuant to Section 538 Para. 2 sentence 1 ZPO presupposes that a further hearing of the case before the court of first instance is necessary. Such necessity does not exist, for example, if the legal dispute does not require any further clarification of the facts or if it can easily be brought to a decision in the second instance. Violations of the right to be heard can also only ever lead to the first instance decision being amended or even set aside if it is based on this defect (see also Section 513 ZPO). The legal violation must therefore be causal for the result of the decision. In the event of a violation of substantive or procedural standards, it depends on whether the decision would have been more favorable to the appellant without the violation of the law; the court of appeal must therefore always repeat the proceedings itself without error (unless a referral back is considered as an exception) (MünchKomm ZPO/Rimmelspacher, 5th edition, Section 513 para. 12). Consequently, violations of the right to be heard can in any case be remedied by the court of appeal granting the right to be heard.
24
dd)
25
It cannot be successfully argued that the opinion of the Senate leads to a “perpetuation” of the violation of the right to be heard in the context of the ruling that is incompatible with the aforementioned case law of the Federal Constitutional Court.
26
First of all, it should be noted that, according to the established case law of the Federal Constitutional Court, violations of the right to be heard can be remedied by subsequently granting the right to be heard (see BVerfGE 96, 27; 104, 220). The division of functions between the specialist and constitutional courts initially entrusts the specialist courts with the correction of infringements of fundamental rights that have already been realized. This applies in particular to the conduct of the oral hearing, which is mandatory in response to the objection pursuant to section 924 para. 2 sentence 2 ZPO must be held (BVerfGE BeckRS 2017, 123654).
27
The risk perceived by the defendant that the Senate’s opinion could lead to the courts of first instance continuing to issue orders without the necessary involvement of the defendant due to the lack of sanctions to be feared does not exist. For it is precisely in the case of a deliberate and systematic ignoring of procedural rights, which the specialist courts practice in the confidence that these violations of rights would remain without consequences in view of the defense options opened up later and could therefore not be asserted, that the defendant has the direct option of lodging a constitutional complaint against the order (BVerfG GRUR 2018, 1291 marginal no. 23 – Steuersparmodell eines Fernsehmoderators). Against this background, it is not to be expected that the courts of first instance will continue their previous practice, but that orders without hearing the defendant will be the absolute exception in future.
28
2.
29
Contrary to the opinion of the Regional Court, the statement (4) of the defendant challenged with the application under I.4. (4) of the defendant in the injunction does not constitute denigration within the meaning of Sec. 4 No. 2, 1st half. UWG, so that the plaintiff is not entitled to injunctive relief against the defendant under § 8 para. 1 UWG.
30
The relevant statement (4) reads:
31
“In Germany, too, all the courts that had previously dealt with the case had consistently ruled in favor of A…”
32
It is true that the Regional Court correctly captured the abstract legal requirements for a denigration within the meaning of Section 4 No. 2 UWG. However, the defendant rightly complains that the Regional Court, in the context of the application to the individual case, wrongly interpreted the statement (4) on the basis of the word “also” in such a way that all German proceedings initiated at the time had already been decided in favor of the defendant and that there were therefore no longer any ongoing proceedings in Germany at the time of the statement (4).
33
One may agree with the Regional Court that the word “also” establishes a certain reference to the foreign judgments previously discussed in the press release. However, this reference in no way compels the assumption that the parallel consists precisely in the fact that all other proceedings initiated in Germany had already been decided in favor of the defendant in the injunction. Rather, the essential information for the reasonable reader is that there have already been decisions in favor of the defendant in the injunction in Germany as well. On the other hand, it is doubtful whether a reader who is not legally trained would even make the procedural distinction between proceedings that have merely been initiated (i.e. pending or pending) and proceedings that have already been concluded by a final decision. In any case, this difference is not of relevant interest to the reader in the overall context. Against this background, the transition “also” between statements (3) and (4) merely establishes a substantive relationship between the domestic and foreign decisions denying a patent infringement allegation and the concern of the defendant in the injunction – namely: to show that the enforced decision of the Regional Court is erroneous in law and is therefore set aside. It should be emphasized that German courts have also already ruled in favor of the defendant in the injunction; this does not imply that all pending German proceedings would have had this outcome.
34
The regional court’s interpretation is also not justified by the subsequent sentence, which refers to “ongoing court proceedings“. Nor does the reasonable reader take from this the implied statement that there are no further relevant proceedings in Germany. Rather, the reader is informed that there are still further proceedings between the parties, without any differentiation being made in this respect according to location (Germany/abroad). Since the press release also does not differentiate between individual patents, the reader does not relate the latter exclusively to EP 1 145 729 (Annex HL1a) of the plaintiff in the injunction.
35
Finally, the words “all courts involved” do not imply for a reasonable reader an alleged concurrence of proceedings initiated and decisions already issued. As the Regional Court itself assumed, the reader does not understand the word “concerned” in the sense of the mere “pendency of a legal dispute”, but in the sense of a mental examination of the respective court with the subject matter of the dispute.
36
In view of the above, the reasonable reader would only infer from statement (4) that previous German decisions – insofar as they had been issued to date – had been in favor of the defendant, which was indisputably objectively true. Consequently, it no longer even matters whether, if the Regional Court’s understanding is correct, a denigration could be affirmed at all.
37
3.
38
With regard to statements (1) to (3), the appeal is unfounded.
39
In this respect, the Senate first refers to the relevant statements of the Regional Court and adopts them as its own. The specific objections raised in the appeal do not prevail for the following reasons.
40
a)
41
The statement (1) with the words
42
“A…. regrets the inconvenience caused in the meantime These are solely due to the fact that B… has enforced two non-final judgments against which A… has appealed.”
43
constitutes an unlawful disparagement within the meaning of Sections 3, 4 No. 1 UWG.
44
aa)
45
Contrary to the appeal, the Regional Court did not evaluate the statement (3) on the basis of an incorrect assessment standard. Rather, the opinion of the defendant merely differs from that of the Regional Court as to how the average informed, reasonable and attentive addressee understands statement (1). In particular, the Regional Court did not overlook the fact that the press release at issue begins by pointing out that the defendant in the injunction is prohibited by the court from distributing the disposable catheters (see explicitly LGU, p. 14 below).
46
In this context, the defendant complains without success that, contrary to the reasoning of the Regional Court, no “abbreviated presentation of the facts” is inherent in the statement (1). The Regional Court convincingly argued that, according to the meaning of the challenged statement, the “cause” of the inconvenience caused by the distribution stop was not the patent dispute as such – in which both parties are equally involved – but only the conduct of the plaintiff in the injunction, namely its enforcement actions. In doing so, the Regional Court rightly referred to the word “exclusively” contained in the statement (1), which particularly emphasizes this suggestion. The appeal simply does not deal with this argument. The Regional Court rightly assumed that this resulted in an abbreviated presentation of the facts underlying the sales stop – to the detriment of the plaintiff in the injunction: It is true – as explained above – that the press release at issue points out at the outset that the defendant in the injunction is prohibited from distributing the specified disposable catheters due to the judgments. The defendant also correctly notes that paragraphs 2, 3 and 5 of the press release also contain references to (alleged) patent infringements by the defendant. However, even if the reasonable reader can therefore infer from the press release that these patent infringements are partly responsible for the sales stop, statement (1) makes a one-sided assessment to the detriment of the plaintiff in the injunction in the sense that the plaintiff alone is responsible for the sales stop because it enforces the non-final judgments.
47
The defendant’s statement that it is objectively correct that the final decision on the enforcement of the injunction claim and the associated inconvenience for the defendant and its customers lay solely with the plaintiff does not contradict the assumption of an abbreviated description of the circumstances. This becomes clear at the latest when one considers – as the Regional Court also rightly assumed – that the plaintiff in the injunction is implicitly accused of having deliberately accepted that the defendant’s customers suffer further disadvantages over and above the inconvenience already associated with the use of urinary catheters. The latter arises in the context of the further statement in the press release at issue with the words “[…] and that the users of our disposable catheters were wrongly exposed to these unnecessary burdens.” This is all the more true as the defendant in the injunction emphasizes in relation to itself at the end of the press release: “For A… the well-being of patients always comes first and our research and innovation serves to meet the needs of our customers and the users of our products in the best possible way.” The abbreviated presentation rightly recognized by the Regional Court is therefore based on the fact that the reasonable reader gains the impression that the decision of the plaintiff in the injunction to enforce the judgments in question constitutes incomprehensible conduct that is to be disapproved of.
48
bb)
49
The appeal asserts without success that statement (1) does not in any case constitute a disparagement of the plaintiff in the injunction. In this respect, it merely reproduced the objective legal situation regarding the enforcement of non-final judgments and ultimately only repeated what the plaintiff in the injunction had also stated in its own press release (Annex HL 8).
50
It is true that not every statement or criticism constitutes a disparagement that can be challenged under competition law, but that further reasons are required that make the statement appear inappropriately derogatory, pejorative or unobjective (see Harte-Bavendamm/Henning-Bodewig, UWG, 4th edition, 2016, Section 4 No. 1 para. 18). Contrary to the appeal, however, the statement (1) is not limited to reflecting the legal situation in the enforcement of non-final judgments or even in a repetition of the content of the injunction plaintiff’s own press release (Annex HL 8). The relevant wording of the plaintiff in the injunction was: “B… may, however, enforce the judgments against security and will immediately take all necessary steps to enforce the decisions“. The challenged statement (1) clearly goes beyond this in that – for the reasons stated above under aa) – it contains a disapproving assessment of the plaintiff’s decision beyond the presentation of the facts and the legal situation and therefore has at least a derogatory character.
51
cc)
52
Contrary to the appeal, the statement (1) does not lack the necessary unfairness.
53
Since there is no formal insult or purely abusive criticism in the present case, the goods and interests of the parties involved and the general public must be weighed up, in which, on the one hand, the protection of the business reputation of the person concerned pursuant to Art. 2 para. 1, 12 GG, on the one hand, and the meaning of Art. 5 para. 1 GG and the principle of proportionality must be taken into account (BGHZ 136, 111 (121 f.) = GRUR 1997, 916 (919) – Kaffeebohne; BGH WRP 2018, 682 para. 31, 35 – Verkürzter Versorgungsweg II with further references). In addition, the interest of the general public in undistorted competition, which is simultaneously protected under Section 1 sentence 2 UWG, must be taken into account when weighing up the interests in such a way that statements of opinion serving commercial purposes are to be judged more strictly than statements that are only to be judged under tort law (BGH WRP 2016, 843 para. 56 – Im Immobiliensumpf; BGH WRP 2018, 682 para. 35 – Verkürzter Versorgungsweg II). The more useful the information is for the addressees or the more there is a legitimate interest in information or a sufficient reason for the criticism for other reasons and the more factually the criticism is presented, the more admissible the criticism can be (BGH GRUR 2012, 74 para. 33 – Coaching-Newsletter; BGH WRP 2016, 843 para. 51 – Im Immobiliensumpf; BGH WRP 2018, 682 para. 35 – Verkürzter Versorgungsweg II). Generally speaking, it is not the responsibility of an entrepreneur to publicly attack the business practices of a direct competitor, even if they are also protecting the interests of their industry. Instead, going public requires an urgent interest in information on the part of the public. There must be sufficient cause for the criticism, namely an interest in clarification worthy of protection on the part of the public addressed, and it must be of a nature and extent that is necessary or objectively required (BGH GRUR 2012, 74 para. 37 – Coaching-Newsletter; OLG Cologne WRP 2011, 779 (780)). The burden of proof that a criticism is justified in terms of content and form lies with the infringer (OLG Stuttgart WRP 1997, 350 (354)).
54
Applying these principles, the Regional Court rightly assessed the statement (1) as unfair and in this respect assumed that the plaintiff’s interest in protecting its business reputation outweighed the defendant’s interest in informing its business partners about the reason for the sales stop.
55
The defendant in the injunction was by no means limited to reporting on the case on a factual level and pointing out the connection between the distribution stop and the (alleged) patent infringement. On the contrary – see above – it also made derogatory comments about the plaintiff’s decision. It is true that the word “aggressive” does not appear in statement (1) or in the entire press release. Nevertheless, in the overall context of the press release, statement (1) suggests to the reasonable reader that the difficulties for customers associated with the enforcement were ultimately based on a business policy of the plaintiff in the injunction that was to be disapproved of and which wrongly placed its interests above those of the customers. It is possible that the plaintiff in the injunction would have had to accept criticism to the effect that caution would have been advisable when deciding on enforcement in view of the lack of legal force and foreign case law to the contrary. However, it is not acceptable to attribute the negative effects for the customers “exclusively” to the decision of the injunction plaintiff. Without the (alleged) patent infringement by the defendant, customers would never have been faced with the necessity of having to (temporarily) rely on a product other than the allegedly infringing forms.
56
b)
57
With regard to statement (2) with the content
58
“B…’s action is all the more regrettable because in all other countries – in particular in the Netherlands, France and Spain – that have been involved in this patent dispute, no court has ever ruled that our C… or D… disposable catheters infringe B…’s patent rights.”
59
the Regional Court did not err in law in finding unfair disparagement pursuant to sec. §§ 3, 4 No. 2, 1st half of the UWG.
60
aa)
61
Contrary to the appeal, the relevant public did not understand the word “in particular” in the overall context of the press release as an exhaustive list and specification of the “other countries” mentioned in the sense of “by name”.
62
As the Regional Court correctly assumed, it applies to ambiguous statements that, according to life experience, the advertiser is generally aware of this circumstance in the case of ambiguous statements and that contrary assertions in court are only protective assertions and the protective purpose of fair trading law, to suppress misconceptions of market participants about a service offer, requires that priority be given to the interest of the relevant public in undistorted market information instead of freedom of action (freedom of opinion) (Harte-Bavendamm/Henning-Bodewig, loc. cit.op. cit, Introduction G. para. 84). According to the so-called “Stolpe case law” of the Federal Constitutional Court (BVerfG NJW 2006, 207, 209), which is to be applied to fair trading law (Harte-Bavendamm/Henning-Bodewig, loc. cit., Introduction G. para. 84), the principle of favorability therefore does not apply to injunctive relief against violations of personality rights.
63
Contrary to the appeal, the contested judgment provides a comprehensible justification for the fact that statement (2) is likely to mislead at least a significant part of the public. In this context – with regard to the defendant’s complaint – the following must first be added with regard to the determination of the public’s understanding: How an advertisement is understood depends on the perception of the group of people to whom it is addressed. An advertising claim can be addressed to the general public or to a specific public. Depending on the target audience and the type of product, the perception of the meaning of an advertising claim can be fundamentally different. If an advertisement is only aimed at experts, their opinion and language usage in the relevant specialist field will be decisive (BGH GRUR 2013, 649 para. 50 – Basisinsulin mit Gewichtsvorteil; BGH GRUR 2015, 1244 para. 17 – Äquipotenzangabe in Fachinformation). The court may sometimes also determine the public opinion on the basis of its own expertise in cases that involve the understanding of circles to which the judges appointed to make the decision do not themselves belong. This is the case, for example, if the specialist circles do not use any special knowledge or experience to assess the advertising claim in question (BGH GRUR 2002, 77 (79) – Rechenzentrum; BGHZ 156, 250 (255) = GRUR 2004, 244 (245) – Marktführerschaft; BGH GRUR 2014 1211 para. 20 – Runes of Magic II). Furthermore, courts that are constantly dealing with competition matters may have acquired the necessary expertise on the basis of their particular experience to be able to independently assess how specialist circles understand a particular advertising statement. This is the case, for example, with a chamber or a senate that frequently deals with market surveys (BGHZ 156, 250 (255) = GRUR 2004, 244 (245) – Marktführerschaft; BGH GRUR 2014, 682 para. 29 – Nordjob-Messe).
64
Having said this, in view of the overall context, the Regional Court found an ambiguous statement and a predominant probability of the risk of misleading significant parts of the public without error of law: The reference to divergent court decisions in other countries serves to relativize the patent infringements found by the District Court and thus to make the decision of the plaintiff in the injunction to make use of the possibility of enforcing the non-final judgments appear particularly risky. The reader’s lack of understanding of the injunction plaintiff’s decision, as intended by the defendant, increases with the number of countries in which divergent decisions have been issued. This and the fact that the plaintiff in the injunction does not mention the total number of countries with divergent case law at any point lead the reasonable reader to assume that there were more than three countries in total and that the territories mentioned (the Netherlands, France and Spain) were merely particularly important locations.
65
bb)
66
The defendant unsuccessfully argues that, in any case, there is no unfairness, since the statement (2), as a factual assertion that is not deliberately untrue, enjoys protection of fundamental rights under Article 5 and Article 12 of the Basic Law, which the Regional Court failed to recognize.
67
It is correct that when interpreting Section 4 No. 2 UWG, the impact of Art. 5 para. 1 sentence 1 GG must be taken into account and the result of the balancing of the conflicting legal interests depends on the truthfulness of the statement, whereby deliberately incorrect factual assertions per se do not constitute an interest worthy of protection (Köhler/Bornkamm/Feddersen/Köhler, 37th ed. 2019, UWG Section 4 para. 2.10). However, the defendant draws the incorrect conclusion from this that unknowingly untrue factual allegations per se cannot constitute defamation. Rather, the person making the statement also bears the risk of unintentional misunderstandings; anyone who presents statements as objectively correct assumes responsibility for their accuracy (BGH GRUR 1971, 153, 155 – Tampax; Harte-Bavendamm/Henning-Bodewig, loc. cit., § 4 para. 32). The alleged subjective honesty of the defendant to the injunction is therefore not an obstacle to denigration. Apart from this, the defendant has not shown in the appeal proceedings that there were objective indications of decisions in favor of the defendant in states other than the three states mentioned.
68
Finally, it may be true that the defendant had a considerable interest in informing customers of its assessment that the Düsseldorf judgments in question were wrong and would probably be overturned. However, it should have limited itself in this respect to accurate descriptions of the circumstances.
69
cc)
70
Contrary to the appeal, the contested decision regarding statement (2) is also not based on an incorrect assessment of the facts. It does make a difference with regard to the credit damage of the plaintiff in the injunction whether “in particular” means a merely exemplary or exhaustive list. This is because with each additional state whose courts decided differently from the Düsseldorf Regional Court, the reasonable reader would have to assume that the significance of the Düsseldorf judgments would be relativized all the more and in this way the enforcement would appear all the more risky and incomprehensible.
71
The defendant’s argument that the information that the defendant considers the relevant patent infringement judgments to be false has no effect on the purchasing decision of the plaintiff’s customers must also be rejected. This already disregards the fact that this is not an allegation about the goods of the plaintiff, but about its company. By portraying the plaintiff as a company that “against all reason” enforces non-appealable judgments and places its interests above those of patients, there is undoubtedly a risk of damage to the plaintiff’s business or credit.
72
c)
73
Finally, the Senate has no reservations about the fact that the Regional Court concluded statement (3) with the words
74
“B…’s actions are all the more regrettable because in all other countries – in particular in the Netherlands, France and Spain – that have been involved in this patent dispute, no court has ever ruled that our C… or D… disposable catheters infringe B…’s patent rights. On the contrary, outside Germany, all lawsuits or applications for preliminary injunctions filed by B… against the disposable catheters have so far been rejected.”
75
as a misleading commercial act within the meaning of Section 5 para. 1 No. 3 UWG.
76
aa)
77
The complaint that the Regional Court allegedly incorrectly assumed a factual assertion (instead of a value judgment) is not comprehensible.
78
The question of whether the foreign decisions referred to had become res judicata is open to proof and statement (3) is therefore, according to general principles, an assertion of fact. Contrary to the appeal, this circumstance is not altered by the fact that the res judicata nature of these decisions was not expressly asserted. The qualification as an assertion of fact or value judgment is not determined on the basis of the criteria of “express” or “implied” assertion, but solely on the basis of whether the content of the (implied) statement is accessible to the evidence or not (see BGH WRP 2018, 682 para. 29 – Verkürzter Versorgungsweg II).
79
bb)
80
The defendant complains in vain that the Regional Court read an implied statement into the press release that the foreign proceedings had been concluded with legal effect. It failed to recognize that the affirmation of implied statements presupposes a misconception that is not dispelled. The regional court also failed to adequately assess the wording “to date”.
81
The defendant in the injunction must be agreed that information contained indirectly or implicitly in a commercial act must be distinguished from “non-information” or merely incomplete information. The latter are “statements” within the meaning of Section 5 para. 1 sentence 2 UWG, as this does not require the information to be openly disclosed in the commercial act (Harte-Bavendamm/Henning-Bodewig, loc. cit., Section 5, B. para. 84). It is sufficient if the relevant public can infer the factual assertions from it. Indirect, implied information differs from concealed information, which only constitutes misleading information under the conditions of Section 5a UWG, in that the public ascribes information content to the commercial act itself. The decisive factor is therefore whether the average (reasonably) attentive, sensible and informed consumer only fills the gap left by the alleged lack of information (then omission) or whether he draws false conclusions from the information provided (see OLG Hamm, GRUR-RR 2011, 189; Harte-Bavendamm/Henning-Bodewig, loc. cit., Section 5, B. para. 85).
82
In the latter sense, this is the case here: The Regional Court correctly based its decision on the fact that, according to the overall context of the press release, the defendant understands the statement (3) to refer to final foreign judgments. The Regional Court convincingly justified this by stating that the judgments on which the plaintiff’s enforcement actions are based are referred to as “non-final” and are combined with the further information that the defendant “immediately appealedagainst them”, while there is no corresponding clarification with regard to the foreign judgments. Furthermore, this understanding of the target public is supported by the fact that statement (3) refers to “actions or applications initiated” as the start of the proceedings and, in contrast, the reasonable reader understands the decisions as the end point of the proceedings if no corresponding clarification is provided. Finally, the “court proceedings” on which the enforced judgments are based are described as “still ongoing“, while there is again a lack of corresponding clarification with regard to the foreign judgments. These contradictory formulations lead to a positive misconception on the part of the intended reader. The fact that “there is no direct procedural connection” between the domestic and foreign proceedings cannot be called into question.
83
Contrary to the appeal, this misconception is not dispelled by the phrase “to date“. For this does not make it at all clear that it is not a matter of completed proceedings. This word merely refers to the time at which the judgments enforced by the plaintiff in the injunction were issued and therefore does not relate to the question of whether the foreign judgments are final.
84
The defendant in the injunction is also not helped by the reference to the fact that corresponding press releases are known to always be interest-driven and that even the legally untrained reader could therefore have assumed that the defendant in the injunction would have pointed this out in the event of the existence of legal force. This disregards the said overall context of the specific press release.
85
Finally, the commercial relevance of the statement (3) is not called into question by the fact that the injunction patent has since expired. Just as this does not affect the risk of repetition in the absence of a cease-and-desist declaration subject to penalty, it does not affect the commercial relevance.
86
Whether the requirements of Section 5a UWG are met can therefore be left open, as a deception through positive action must be affirmed. Accordingly, it is particularly irrelevant whether the legal principles applicable to customer warnings should be applied here.
87
III.
88
The decision on costs follows from Sections 92 (1), 97 (1) ZPO. 1 ZPO.
89
Pursuant to. § Section 542 para. 2 sentence 1 of the German Code of Civil Procedure (ZPO), the present judgment is final upon its pronouncement, so that a decision on provisional enforceability is obsolete.
90
Value in dispute of the appeal proceedings: EUR 50,000.00