Tenor:
1. the defendant is ordered to refrain from advertising or having advertised the product “B” with the logo of T in the context of business activities, as shown in Annex K1, without indicating the publication date, while avoiding a fine of up to € 250,000.00 to be fixed for each case of infringement, alternatively imprisonment for up to 6 months or imprisonment for up to 6 months, to be enforced on the managing directors.
2. the defendant is ordered to pay the plaintiff € 214.00 plus interest in the amount of 5 percentage points above the base interest rate since August 31, 2018
3. the defendant is ordered to pay the costs of the proceedings.
4. the judgment is provisionally enforceable against the provision of security in the amount of € 20,000.00.
Facts:
The defendant advertised the product “B” (dishwasher tabs) with the logo of T and the designation “Testsieger” (test winner) on page 9 of its advertising brochure “inspiriert – So ein Früchtchen”, issue N (Annex K1). The publication date was and is not legible.
In a letter dated May 21, 2018, the plaintiff requested that the defendant issue a cease-and-desist declaration with a penalty clause. The defendant had this request rejected by its legal representatives in a letter dated 21.06.2018.
The plaintiff requests,
1. order the defendant to refrain from advertising or having advertised the product “B” with the logo of T in the context of business activities, as shown in Annex K1, without indicating the publication date, while avoiding a fine of up to € 250,000.00 to be set for each case of infringement, alternatively imprisonment for up to 6 months or imprisonment for up to 6 months, to be enforced on the managing directors.
2. order the defendant to pay the plaintiff € 214.00 plus interest at a rate of 5 percentage points above the prime rate since the action was brought.
The defendant claims,
dismiss the action.
The defendant is of the opinion that there is no risk of repetition, as it has made a binding declaration to S gGmbH to cease and desist. The assertion of the claim for injunctive relief and reimbursement of expenses at issue here is also an abuse of rights, as the plaintiff only took action on the initiative of S gGmbH.
The action was served on the defendant on 30.08.2018.
Reasons for the decision:
The action is admissible and well-founded.
1. the claim for injunctive relief arises from §§ 8, 3, 5 a para. 2 UWG.
a.) According to the case law of the Federal Court of Justice (GRUR, 1991, 679; 2010, 248; 2016, 1076), information on test results included in an advertisement must be easily and clearly verifiable, which not only requires that a reference to the test has been provided at all, but also that this information can be easily found by the consumer due to the design of the advertisement. It is a requirement of professional diligence to only advertise test results if the consumer is provided with a clear and easily accessible reference and is thus given a simple opportunity to take note of the test itself. If this is not the case, it impairs the consumer’s ability to examine the test-related advertising and, in particular, to place it in the overall context of the test (BGH, GRUR, 2010, 248, 251; LG Duisburg, BeckRS 2015, 2978). Withholding material information within the meaning of Section 5a (2) UWG is deemed to be capable of noticeably impairing an information-led decision in accordance with Section 3 (2) UWG, as materiality pursuant to Section 5a (2) UWG is defined precisely by the fact that the consumer is influenced within the meaning of Section 3 (2) UWG (LG Duisburg, BeckRS 2015, 2978 with further references).
b.) This case law is applicable to the present case.
The lack of or insufficient reference to a source in the advertising complained of constitutes a significant withholding of information.
The fact that the defendant provides a link in the advertisement at issue, behind which test results can be found, does not satisfy the above requirements. If the consumer follows the link provided with an internet-enabled device, the consumer arrives at an internet presence with numerous subcategories, including test results, whereby the heading is “B2 in the test”. The consumer would first have to find the product advertised here among this flood of information on the website in order to find the location of the test result. Apart from this, the consumer is also forced into a media disruption. This means that the test result stated by the defendant is not easily and clearly verifiable for the consumer, as it is not easy to find.
c.) There is also a risk of repetition. According to established case law, the risk of repetition is generally only eliminated by the submission of a cease-and-desist declaration with a penalty clause. The defendant has not submitted a cease-and-desist declaration with a penalty clause. The risk of repetition was also not eliminated by the correspondence between the defendant and S gGmbH. The defendant’s declarations to S gGmbH are merely aimed at compliance with its obligations under the contract with S gGmbH, i.e. that there will be no future breaches of contract in the form at issue. S gGmbH is merely the awarding body for the paid logo licenses of T and the monitoring body for the use of the logo of T. The purpose of S gGmbH is the awarding of logo licenses, monitoring of use in accordance with the contract and the prosecution of misuse. However, S gGmbH does not serve the purpose of consumer protection. This is primarily the responsibility of the consumer advice centers. This also explains why, in the present case, S gGmbH forwarded the incident to the plaintiff. S gGmbH is also not a qualified institution within the meaning of Section 4 UKlaG.
d.) The plaintiff is not acting abusively within the meaning of Section 242 BGB. The fact that S gGmbH declared to the defendant that the matter was settled for S gGmbH is not relevant for the present proceedings. The matter in dispute is not a claim under trademark law, but a claim for injunctive relief due to misleading advertising. Apart from the fact that S gGmbH would not have jurisdiction, it cannot dispose of such claims and therefore cannot waive them.
Contrary to the defendant’s view, there is no multiple prosecution of the identical infringing act by several claimants. The scope of application of the case law on “abusive multiple prosecution” is misjudged by the defendant. Multiple prosecution of the same infringement of competition law can prove to be abusive in particular if it is based on a concerted action of the injunction creditors and if – without a reasonable reason being apparent – the multiplication of the cost risk associated with the legal defense and the commitment of human and financial resources results in an unreasonable burden on the opposing party (BGH, GRUR 2000, 1089, 1091 with further references). S gGmbH did not pursue a breach of competition against the defendant, but a breach of contract. This also rules out the possibility that the plaintiff and S gGmbH had agreed on joint action against the defendant for competition law infringements. Neither is the forwarding of information about any competition law infringements to the competent body, nor is the prosecution after receipt of this information reprehensible or abusive.
The fact that the contractual terms of S gGmbH comply with the established case law of the Federal Court of Justice on the indication of references in advertising with a test result does not mean that S gGmbH is pursuing infringements of the T logo licensing system in the interests of consumers and is taking action against the licensees under competition law. S gGmbH is taking action against the licensees, such as the defendant here, for breaches of contract by the licensees and not for breaches of competition law. The mere fact that the same act entitles two creditors to take action against the acting party under contract and competition law does not lead to abusive multiple prosecution. Especially if the creditors pursue different interests and the act simultaneously constitutes a breach of contract and a breach of law. This is also the case here. S gGmbH is primarily protecting the contractual interests of T. The plaintiff is pursuing the interests of consumers. This can also be seen from the fact that S gGmbH requested the defendant to design its advertising in accordance with the contract in its letter dated 7 May 2018 (Exhibit B4; p. 59 of the file). The fact that the contractual protection by S gGmbH also has an effect on the consumer does not change this.
2. the claim for payment arises from Section 12 para. 1 sentence 2 UWG. The claim for interest arises from §§ 291, 288 BGB.
3 The procedural ancillary rulings follow from Sections 91 and 709 ZPO.
The amount in dispute is set at EUR 15,000.00.