In its decision, the Higher Regional Court of Frankfurt a.M. had to deal with the question of the admissibility of advertising suitcases as “world’s lightest”. In this specific case, the court found this to be inadmissible under competition law (judgment of February 14, 2019, Ref.: 6 U 3/18).
Specifically, the competitor of a company based in the UK complained about the use of this name in the context of a trade fair presentation, as a name on suitcases and on the website (which, however, contained nothing more than this and two other slogans).
Not all suitcases were the lightest in the class
However, the focus of the decision was not so much on the question of whether these were actually the lightest suitcases in the world. Rather, it was undisputed that not all of the suitcases on offer were the lightest in their class. The corresponding designation on the suitcases and in the context of a trade fair presentation was therefore a misleading designation that could be effectively challenged under competition law.
Weight and handling are of particular relevance
The court derived the corresponding relevance for commercial transactions from the special significance of the weight of luggage in the context of air travel. The use of the designation on the suitcases constituted a factual indication pursuant to Sec. § 5 Abs. 1 No. 1 UWG. However, the court considered the use of the designation on the defendant company’s website to be permissible. The public had no reason to attribute the statement to specific items of luggage, as the website did not contain any further content.
International jurisdiction of German courts
In addition to these statements, the decision of the Higher Regional Court of Frankfurt a.M. contains extensive statements on the question of whether and when a company can be sued in German courts under competition law. The court also expressly refers to the case law of the ECJ and the BGH.
Accordingly, a competitor can enforce his claims in accordance with Art. Art. 7 No. 2 EuGVVO (formerly Art. 5 No. 3 EuGVVO) (also) before German courts:
“The District Court rightly assumed that the scope of application of the Brussels I Regulation is open, as the defendant is domiciled in the United Kingdom and this is (still) a member of the European Union. The Regional Court also rightly identified Art. 7 No. 2 Brussels I Regulation as a possible rule of jurisdiction, since unfair competitive acts such as those alleged here are to be regarded as unfair acts within the meaning of Art. 7 No. 2 Brussels I Regulation (BGH GRUR 2014, 601 – English-language press release, para. 16a; BGH WRP 2006, 736, 738 – Pharmaceutical advertising on the Internet; BGH GRUR 2005, 431, 432 – Hotel Maritime).”
Following the case law of the ECJ
According to the relevant case law of the ECJ, the term “place where the harmful event occurred” (Art. 7 No. 2 Brussels I Regulation) refers to both the place of action and the place of success of a harmful act (i.e. the place where the result of the damage is realized). According to the corresponding case law of the Federal Court of Justice, the place of success is expressly to be taken into account in the case of infringements of unfair competition law. In the case of infringements on the internet, it is then a question of the intended effect of the act. If this is (also) in Germany, a domestic court also has jurisdiction.
Competition law not comparable to violations of personal rights
However, the OLG expressly rejects the transfer of the legal principles developed by the ECJ in the “Fiona Shevill” case to the competition law case here (see ECJ GRUR Int. 1998, 298 – Shevill, ECR 1995, I-415; ECJ GRUR 2012, 300 – eDate Advertising). Accordingly, the courts of each Member State or Contracting State may have jurisdiction in the event of violations of personality rights. The affected party can then pursue the damage incurred in the respective state there. The entire damage can be claimed at the defendant’s place of residence or at the place where the damage was caused.
Intended effect relevant
This is also in line with the case law of the BGH, which rejects such a transfer (BGH GRUR 2014, 601 – English-language press release). According to this, in competition law disputes, it is not important where the competitor has his habitual residence and center of life in Germany. The place of the intended impact should be sufficient to determine the competent courts.
In the opinion of the OLG, an exhibition at a trade fair, as in the present case, always has the intended effect on the respective country. The same applies to deliveries of goods to Germany. Naturally, these have an effect in Germany as intended.
“de” domain speaks for domestic reference
The operation of a website under a “de” top-level domain should also have the necessary domestic connection. This applies even if the content of the website is exclusively in English:
“This [der Klageantrag] concerns a website under a “de” top-level domain, which is intended to (also) address German customers. While one may still reject a restriction to English-speaking countries for “com” domains due to the widespread use of the English language in other countries, it is not apparent why your “de” domain should be aimed at other than German-speaking customers (Harte-Bavendamm/Henning-Bodewig/Retzer/Tolkmitt, 4th ed. 2016, UWG § 14 marginal no. 77). The challenged website also does not contain any other indications that the offer was not intended for German consumers.”
German competition law is decisive
The fact that German fair trading law is also applicable in the present case is based by the court on Art. 6 para. 1 and para. 2 ROM II REGULATION. According to this, “the law applicable to non-contractual obligations arising out of unfair competitive conduct shall be the law of the State in whose territory the competitive relations or the collective interests of consumers have been or are likely to be affected“. This requirement was met by the delivery of goods to Germany, the exhibition at the trade fair and the operation of the website.
Beware of subsequent implied choice of law
In passing, the court mentions that the applicability of German law also results from the reference made by both parties to German substantive law. This constitutes a subsequent implied choice of law pursuant to Art. Art. 14 para. 1a Rome II Regulation. This is likely to be a very relevant point in practice. As a rule, the defense against claims is not only based on procedural provisions, but also or even predominantly on substantive law. If this is done (possibly not only in the alternative), the relevant provisions – the application of which you may want to prevent – are applied in the first place.