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OLG Frankfurt am Main, 28.02.2019 – 6 U 181/17

Batteries for vehicles that children can drive themselves (children's cars) are not "portable batteries" within the meaning of the Battery Act, but "industrial batteries". As long as these batteries are not registered in the battery register in the relevant category, the marketing of children's cars fitted with them is unfair.

Tenor:

The defendant’s appeal against the judgment of the 3rd Chamber for Commercial Matters of the Regional Court of Darmstadt delivered on July 14, 2017 is dismissed with the proviso that the default judgment of December 8, 2016 is upheld with the following proviso:

The conviction under no. 2 and 3 reads as follows:

2.
The defendant is ordered to refrain from selling batteries and/or accumulators in the course of trade, when selling electric cars for children, as was done via its online store “(…).de” (Annex K1), to consumers for the purpose of competition, as long as the product sold (Annex K1) is only registered in the battery register in the category “portable battery”.

3.
The defendant is ordered to refrain from selling electric cars for children in the course of trade, as was done via its online store “(…).de” (Annex K1), to consumers for the purposes of competition, without supplying an instruction manual in German, i.e. directly with the product (Annex K1) and/or immediately after the sale in paper form or in electronic form, if the offer does not expressly state that an instruction manual in German is not supplied with the purchased item.
The plaintiff shall bear 1/5 and the defendant 4/5 of the costs of the legal dispute at both instances.
The judgment is provisionally enforceable without the provision of security. The defendant may avert the plaintiff’s enforcement by providing security in the amount of € 35,000.00 unless the plaintiff provides security in the same amount prior to enforcement.

Reasons

I.

The parties are in dispute about registration and information obligations in connection with the sale of electric cars for children.

The parties are competitors in the nationwide online sale of battery-powered electric cars for children in which they can drive themselves. The plaintiff complains about an “Original Marke1” children’s car offered by the defendant on February 14, 2016, which has a 12 V electric motor powered by three lead-acid batteries (Annex K1).

On 14.2.2016, the defendant was not yet registered in the EAR’s register of manufacturers and authorized representatives in accordance with Section 6 of the German Electrical and Electronic Equipment Act (Annex K3). The batteries in question were not registered as “industrial batteries” or “vehicle batteries” in the Battery Act register of the Federal Environment Agency. The defendant only registered various “portable batteries”.

According to the plaintiff’s submission, an instruction manual was only enclosed in English with one of the defendant’s products purchased by means of a test purchase.

The plaintiff sent the defendant a warning letter dated February 18, 2016. In a default judgment dated December 8, 2016, the Regional Court ordered the defendant to cease and desist on pain of statutory penalties,

1. to offer, sell and/or place on the market electric cars for children in the course of trade, as was done via its online store “(…).de” (Annex K1), to consumers for the purposes of competition without first being registered with the competent authority under the German Electrical and Electronic Equipment Act for the brand and type of device offered in each case, provided that the electric cars for children are demonstrably purchased from a third party already registered for this purpose with the corresponding brand and type of device;

2. to offer, sell and/or place on the market batteries and/or accumulators in the course of trade, as was done via its online store “(…).de” (Annex K1), to consumers for the purposes of competition, without having been registered for this purpose beforehand with the registers responsible under the law;

3. offering, selling and/or marketing electric cars for children in the course of trade, as was done via its online store “(…).de” (Annex K1), to consumers for the purposes of competition without enclosing an instruction manual in German, provided that the offer does not expressly state that an instruction manual in German is not enclosed with the purchased item.

In addition, the Regional Court ordered the defendant to reimburse pre-trial legal costs in the amount of € 1,141.90 plus interest and to provide information about the acts described in paras. 1-3 above. In response to the defendant’s appeal, the Regional Court upheld the default judgment in a ruling dated July 14, 2017.

With regard to the further details of the facts of the case and the applications made at first instance, reference is made to the findings in the contested judgment (Section 540 (1) ZPO).

The defendant challenges this assessment in his appeal, with which he continues to pursue his motion to dismiss. On appeal, the parties repeat and deepen their arguments.

In an order dated October 23, 2018, the Senate informed the parties of its concerns regarding the wording of the injunctions under no. 2. and 3.

The defendant claims,

amending the judgment of the Regional Court of Darmstadt delivered on July 14, 2017, ref. 14 O 62/16, and setting aside the default judgment of the Regional Court of Darmstadt, to refer the legal dispute back to the Regional Court for a new hearing,

in the alternative,

dismiss the action.

In the alternative, the defendant – in accordance with his pleading submitted on the day of the hearing – requests that

1)

2)
to prohibit the plaintiff and counter-defendant from selling batteries/accumulators in the course of trade to consumers for competitive purposes when selling electric cars for children, as was done via Amazon Marketplace (Exhibit WK1) and via its online store “(…).de” (Exhibit WK2), as long as it is only registered in the battery register in the category “industrial battery” for the product sold (Exhibit WK1);

3)
to order the plaintiff and counter-defendant to provide information about where, how often and in what period the plaintiff committed the acts referred to in para. 1 above;

4)
that the plaintiff and counter-defendant is obliged to compensate the defendant and counter-claimant for all damages suffered by the latter as a result of the act referred to in para. 1 above.

The applicant claims that the Court should,

dismiss the appeal, with the proviso that the applications re 2. and 3. read as follows:

2.
The defendant is prohibited from selling batteries and/or accumulators in the course of trade, when selling electric cars for children, as was done via its online store “(…).de” (Annex K1), to consumers for the purpose of competition, as long as the product sold (Annex K1) is only registered in the battery register in the category “portable battery”.

3.
The defendant is prohibited from selling electric cars for children in the course of trade, as was done via its online store “(…).de” (Exhibit K1), to consumers for the purposes of competition, without supplying an instruction manual in German, i.e. directly with the product (Exhibit K1) and/or immediately after the sale in paper form or in electronic form, if the offer does not expressly state that an instruction manual in German is not supplied with the purchased item.

The plaintiff agreed to the alternative counterclaim served during the hearing.

She requested,

dismiss the auxiliary counterclaim.

With regard to the further submissions of the parties, reference is made to the exchanged written submissions and their annexes.

II.

The admissible appeal is not successful on the merits.

1. the plaintiff has a claim against the defendant pursuant to §§ 3, 3a, 8 I UWG in conjunction with §§ 6 I, II ElektroG. § 6 I, II ElektroG to refrain from offering and marketing the product without registration.

a) Section 6 ElektroG is a market conduct regulation. The provisions of the ElektroG serve waste management objectives. According to Section 1 sentence 3, they are expressly intended to regulate the market behavior of the obligated parties (cf. also BGH GRUR 2017, 203 [BGH 21.09.2016 – I ZR 234/15] para. 28 – Fluorescent lamps containing mercury).

b) The children’s car in dispute is an electrical appliance (Section 2 ElektroG). It is not subject to the exemption provision of § 2 No. 7 ElektroG. According to this provision, the law does not apply to means of transport for passengers and goods; however, it does apply to electric two-wheeled vehicles for which type approval is not required. The exemption must be interpreted narrowly. No exemption applies to vehicles that do not have type approval. This product is not a “means of transportation”. It is used solely for leisure purposes. It also has no type approval.

c) According to § 6 I ElektroG, manufacturers of electrical and electronic equipment are obliged to register the type and brand of equipment with the competent authority before placing it on the market. According to § 6 II ElektroG, manufacturers who have not registered are not permitted to place electrical and electronic equipment on the market. The defendant is considered a “manufacturer” under Section 3 No. 9 ElektroG (old version) and is therefore subject to the registration obligation. Accordingly, any distributor who intentionally or negligently offers new electrical or electronic equipment for sale that is not registered or not properly registered by a manufacturer, contrary to Section 6 (2) sentence 2, is to be regarded as a “producer”. The online offer of the defendant according to Annex K1 does not contain any other manufacturer information. It is also not otherwise apparent that another manufacturer was properly registered at the time of the test purchase.

d) A proper registration of the defendant for the children’s electric car in dispute here did not exist at the time of the test purchase on February 14, 2016 (see Annex K3). The defendant unsuccessfully argues that it had already applied for registration before entering the market and received a positive decision. Only the entry in the online register was delayed. The defendant has neither substantiated nor substantiated this submission. He submitted a printout from the EAR portal dated 7.7.2016 as Annex B1. The date of the application or a “decision” is not evident from this. The test offer is already dated 14.2.2016 (Annex K1). Furthermore, neither the submission of an application nor any kind of “notification” is sufficient for “registration” within the meaning of Section 6 ElektroG. It is necessary for the manufacturer to be listed in the register. This was not the case. The one-off infringement justifies the risk of repetition, even if the defendant has been registered in the meantime.

2. the plaintiff also has a claim against the defendant for injunctive relief under §§ 3, 3a, 8 I UWG in conjunction with §§ 3 III, 4 I BattG. §§ 3 III, 4 I BattG to place rechargeable batteries on the market without prior correct registration. The defendant has breached the obligation to notify under the BattG. He did register the batteries of the electric car with the Federal Environment Agency as “portable batteries” (Annex K4). However, this is not sufficient as the batteries are industrial batteries.

a) According to § 3 III BattG, manufacturers may only place batteries on the market if they have previously notified the Federal Environment Agency in accordance with § 4 (1) sentence 1 BattG According to § 4 I BattG, every manufacturer is obliged to notify the Federal Environment Agency before placing batteries on the market. According to § 2 No. 15 BattG, a “manufacturer” is anyone who places batteries on the market for the first time on a commercial basis. The type of battery must be specified when registering. This classification has consequences for the take-back of batteries regulated by the BattG. The BattG provides for different take-back systems for portable batteries on the one hand and industrial and automotive batteries on the other.

b) The parties are in dispute as to whether the batteries in the children’s car are portable batteries, vehicle batteries or industrial batteries. According to § 2 IV BattG, “vehicle batteries” are batteries that are intended for the starter, lighting or ignition of vehicles. According to Section 2 V BattG, “industrial batteries” are batteries intended exclusively for industrial, commercial or agricultural purposes, for electric vehicles of any kind or for the propulsion of hybrid vehicles. According to § 2 VI BattG, “portable batteries” are batteries that are encapsulated and can be held in the hand.

aa) The batteries in dispute are used to power a children’s car. Classification into the correct category requires an interpretation of the above provisions. The Batteries Act implements Directive 2006/66/EC and must therefore be interpreted in accordance with the Directive. The recitals of the Directive state the following:

(8) A distinction should be made between portable batteries and accumulators on the one hand and industrial and automotive batteries and accumulators on the other. The disposal of industrial and automotive batteries and accumulators in landfills or by incineration should be prohibited.

(9) Industrial batteries and accumulators include batteries and accumulators for emergency or back-up power supply in hospitals, airports or offices, batteries and accumulators for use in trains or airplanes and batteries and accumulators for offshore drilling platforms or lighthouses. They also include batteries and accumulators for the exclusive use of portable collection devices in stores and restaurants, barcode readers in stores, professional video technology for television stations and studios, miner’s and diver’s lamps on helmets for miners and professional divers, batteries and accumulators for security systems for electrically operated doors, to prevent the door from jamming or people from becoming trapped, batteries and accumulators for a wide range of devices in measurement and control technology as well as batteries and accumulators for use in solar modules and other photovoltaic and other applications in the field of renewable energies. Industrial batteries and accumulators also include batteries and accumulators for electrically powered vehicles such as cars, wheelchairs, bicycles, airport vehicles and AGVs. In addition to this non-exhaustive list of examples, all batteries and accumulators that are not encapsulated and are not automotive batteries should be classified as industrial batteries.

(10) Unter Gerätebatterien oder -akkumulatoren, wozu alle gekapselten Batterien und Akkumulatoren gehören, die von Durchschnittspersonen problemlos in der Hand gehalten werden können und bei denen es sich weder um Fahrzeugbatterien oder -akkumulatoren noch um Industriebatterien oder -akkumulatoren handelt, fallen Monozellenbatterien (z. B. vom Typ AA oder AAA) sowie Batterien und Akkumulatoren, die von Verbrauchern oder gewerblich für Mobiltelefone, tragbare Computer, schnurlose Elektrowerkzeuge, Spielzeuge und Haushaltsgeräte wie elektrische Zahnbürsten, Rasierer und tragbare Staubsauger (und auch für vergleichbare Geräte in Schulen, Geschäften, Restaurants, Flughäfen, Büros und Krankenhäusern) verwendet werden, und alle Batterien oder Akkumulatoren, die Verbraucher für die üblichen Zwecke im Haushalt möglicherweise benutzen.

The explanatory memorandum to the government draft of the BattG essentially adopts these recitals. Section 2 reads as follows (BT-Drucks. 16/12227):

Paragraph 5 includes under the term “industrial batteries” batteries within the meaning of paragraph 2 that are intended exclusively for industrial, commercial or agricultural purposes or for the propulsion of electrically powered vehicles. This includes, in particular, batteries for emergency or backup power supply in hospitals, airports or offices, batteries for use in trains or airplanes and batteries for offshore drilling platforms, ships and lighthouses. They also include batteries for the exclusive use of portable collection devices in stores and restaurants, barcode readers in stores, professional video technology for television stations and studios, miner’s and diver’s lamps on miners’ and professional divers’ helmets, batteries for safety systems for electrically operated doors to prevent the door from being blocked or people from becoming trapped, Batteries for a wide variety of devices in measurement and control technology, batteries for use in solar modules and other photovoltaic and other applications in the field of renewable energies as well as batteries for electrically powered vehicles such as cars, wheelchairs, bicycles, airport vehicles and vehicles for automated guided vehicles (AGVs). Sentence 2 declares that, in case of doubt, classification as a vehicle battery takes precedence over classification as an industrial battery. Sentence 3 stipulates that batteries that are neither automotive nor industrial or portable batteries shall be treated as industrial batteries for the purposes of this Act. This realizes the claim formulated in Section 1 (1) to cover all types of batteries with this Act.

Paragraph 6 includes under the term “portable batteries” batteries within the meaning of paragraph 2 that are encapsulated and can be easily held in the hand by the average person. In particular, the term “portable batteries” covers monocell batteries, batteries for cell phones, portable computers, cordless power tools, toys and household appliances such as electric toothbrushes, shavers and portable vacuum cleaners (including similar appliances in schools, stores, restaurants, airports, offices and hospitals) as well as all batteries used by consumers for normal household purposes. Sentence 2 declares the classification as a vehicle battery within the meaning of paragraph 4 or as an industrial battery within the meaning of paragraph 5 sentence 1 to take precedence over the classification as a portable battery in cases of doubt.

bb) Accordingly, the batteries in dispute are not vehicle batteries. According to the clear wording of the law in this respect, this only includes batteries intended for the starter, lighting or ignition of vehicles. This is not the case with the batteries in question. Contrary to the opinion of the Regional Court, it is irrelevant whether, according to the submissions at first instance, it could be assumed that the same batteries are also used for motorcycle starters. What is decisive is the specific purpose in question. The batteries used by the defendant are installed in children’s cars and are used for propulsion. They are not intended for use as starter batteries.

cc) Taking into account the legislative considerations, the batteries at issue are also not clearly portable batteries. The batteries are “encapsulated”, i.e. sealed. It remains open whether they can be held in the hand. According to recital 10 of the Directive, this means that they can be held in the hand “without difficulty” by the average person. This is a question of assessment. The batteries are quite large and together weigh over 2 kg (Annexes B3, B4). In the case of portable batteries, the legislator was probably thinking primarily of mono cell batteries (type AA or AAA) and batteries of a similar format. On the other hand, rechargeable batteries from “cordless power tools” and portable vacuum cleaners should also be counted as portable batteries. The rechargeable batteries of hedge trimmers, drills or lawnmowers may well be similar in size and weight to the rechargeable batteries at issue. The Regional Court’s argument that the batteries in dispute do not fit into the take-back containers available in the shops due to their size is therefore unlikely to be valid. Ultimately, this is not the decisive factor. This is because, according to Section 2 VI sentence 2, industrial batteries are not portable batteries. This includes batteries that are “intended for electric vehicles of any kind”. The children’s electric cars at issue are “vehicles” in this sense. The list of electrically powered vehicles (cars, wheelchairs, bicycles, airport vehicles, AGVs), which can be seen from the recitals, is expressly not exhaustive. The defendant’s argument that the product is a toy does not appear to be valid. The product certainly serves the purpose of locomotion. This is supported by the specifications in the offer (Annex K1) and the operating instructions (Annex B6). These consistently refer to a “vehicle” or a “children’s car”. The wearing of a helmet is recommended (p. 107 of the appendix). The product can be moved on uneven ground, has several gears and is capable of speeds of up to 5 km/h. The driving time with the included batteries is one hour. The car can therefore be used by children, e.g. for family walks.

dd) Even if one were to assume an ambiguous classification, the provisions on industrial batteries would apply in case of doubt. According to § 2 V sentence 3 BattG, the provisions on industrial batteries apply to batteries that are not automotive, industrial or portable batteries. It can be deduced from this that industrial batteries are to be assumed in cases of doubt. The expert opinion requested by the defendant on the classification into the correct battery category did not have to be obtained. This is a question of law.

ee) The defendant cannot successfully rely on an official decision for the classification as a “portable battery”. An infringement of competition law is ruled out if the competent administrative authority has issued an effective administrative act that expressly permits the objectionable market behavior (BGH GRUR 2018, 1166 [BGH 13.09.2018 – I ZR 26/17] para. 27 – Litigation funder). The written statement of the Federal Environment Agency, according to which batteries in a mobile toy car are portable batteries, does not constitute a binding regulation in this sense (Annex B7). The letter is not an administrative act with factual effect. The same applies to the letter from the Federal Environment Agency dated 24.1.2019 (Annex BK5), which is referred to as a “technical statement”. An administrative act is any order, decision or other sovereign measure taken by an authority to regulate an individual case in the field of public law and which is intended to have a direct external legal effect (Section 35 sentence 1 VwVfG). The question of whether the statement of an authority constitutes an administrative act is to be determined by applying §§ 133, 157 BGB accordingly. Accordingly, the interpretation of an administrative act is based on the declared intention of the issuing authority as the recipient could understand it on objective assessment (BGH, judgment of 14.6.2007 – I ZR 125/04, para. 16 – juris). The defendant applied for a declaratory decision in a letter dated 25.12.2018. However, the Federal Environment Agency’s reply is not such a decision. The agency expressly only issued a “technical opinion”. In it, it merely states its legal opinion, according to which the battery to be assessed is “in our opinion not to be classified as a vehicle or industrial battery, but as a portable battery”. A binding regulatory content, according to which the registration of the batteries in dispute is correct, cannot be inferred from the letter.

3. the plaintiff also has a claim against the defendant for injunctive relief under §§ 3, 3a, 8 I UWG in conjunction with § 3 IV ProdSG. § 3 IV ProdSG to place the product on the market without enclosing a German-language operating manual.

a) If certain rules must be observed when using, supplementing or maintaining a product in order to ensure the protection of health and safety, instructions for use in German must be provided when the product is made available on the market (Section 3 IV ProdSG). As can be seen from the instructions for use submitted by the defendant (p. 15), specific safety regulations must be observed when operating the electric car. The instructions for use also contain numerous warnings. Instructions for use in German must therefore also be supplied.

b) It is undisputed that the defendant did not initially include German instructions for use in paper form with the product. This is also not necessary. The form in which operating instructions are to be supplied is not regulated in § 3 para. 4 sentence 1, 1st half-sentence ProdSG. An obligation to include the operating instructions in printed paper form cannot be derived from the ProdSG (LG Potsdam, Urt. v. 26.6.2014 – 2 O 188/13, para. 31 – juris; Czernik, MMR 2015, 338). A different interpretation does not result from Directive 95/2001/EC, which was implemented by the Product Safety Act. According to Art. 5 para. 1, consumers must only be provided with relevant information to enable them to assess and protect themselves against the risks posed by the product during normal or reasonably foreseeable use and which are not immediately apparent without appropriate warnings. Nothing else can be inferred from the recitals either. Section 7 II No. 2 of the Second Ordinance to the Product Safety Act (Ordinance on the Safety of Toys) also only states that the toy must be “accompanied” by instructions for use and safety information in German.

c) It is therefore sufficient if the defendant provides the buyer with a German-language operating manual by email as a PDF file before delivery. However, this cannot be assumed in the case in dispute. The plaintiff has specifically stated that no German operating instructions were sent with the test purchase. This also referred to the electronic dispatch. The defendant submitted at first instance that customers were initially sent operating instructions in German by email. The fact that this was also the case with the test purchase was not specifically demonstrated at first instance. In the statement of defense, he only used the present tense (“the customers were sent …”). In the statement of 8.12.2016, it states that “initially” it was sent to customers by email as a PDF, and that it is now included in the packaging. This also says nothing about the time of the test purchase. He also did not submit a sample of the alleged email.

In its statement of 20.2.2019, the defendant unsuccessfully denies for the first time that a test purchase took place at all. In this respect, this is a new means of defense, since the test purchase was undisputed at first instance – as also established in the facts of the contested judgment. This new means of defense can no longer be taken into account pursuant to Section 531 II No. 3 ZPO.

4. the plaintiff is also entitled to the asserted right to information for the preparation of a possible calculation of damages (Section 242 BGB). She is also entitled to the warning costs asserted (1.3 fee from a value in dispute of € 30,000.00). The warning was justified.

5. no decision had to be made on the alternative counterclaim, as the internal procedural condition set for this – dismissal of the second claim – did not occur.

6 The decision on costs is based on Sections 92 I, 269 III ZPO. The plaintiff’s representative has, on the advice of the Senate of 23.10.2018, withdrawn his motions re 2. and 3. were restricted. This is to be seen as an implied withdrawal of the claim. The Senate assesses the partial defeat at 1/5. The decision on provisional enforceability is based on Sections 708 No. 10, 711 ZPO.

7 The requirements for the admission of an appeal (Section 543 (2) ZPO) are not met. The decision is based on an assessment of the specific circumstances of the individual case.

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