The protection of competitors under competition law stipulates, among other things, that an action is unfair if it disparages or denigrates the trademarks, goods, services, activities or personal or business relationships of a competitor. Offensive value judgments about a competitor do not provide the consumer with reliable information and can therefore distort competition.
“a whole series of contractual obligations to be fulfilled”
The Higher Regional Court of Frankfurt am Main recently had to deal with the question of the unfairness of a statement (judgment of March 28, 2019, Ref.: 6 U 203/18). The applicant there tried to get the competitor to refrain from making the statement that it still had “a whole series of contractual obligations to fulfill”. After this request was unsuccessful in the first instance, the Court of Appeal now also saw no entitlement to an injunction against this statement.
Statement of fact vs. expression of opinion
First of all, the court classified the statement as an expression of opinion and distinguished it from a factual assertion that is regularly open to proof. The focus of the statement was on an evaluative moment, so that the statement as a whole was to be understood as a value judgment:
“In the opinion of the Senate, the same principles apply to contractual claims and allegations of breach of contract. Whether and to what extent a party has not complied with contractual obligations requires a legal assessment in the same way as the accusation of other unlawful conduct. The factual core underlying any legal assessment is overlaid by the evaluative content of the statement. The defendant’s statement that “a whole series of contractual obligations must be fulfilled” before the video material is delivered and published is therefore to be seen as a value judgment.”
Previous history decisive
The previous dispute between the parties was decisive for the rejection of the unfairness of the statement. In the opinion of the court, this was initially brought to the outside world by the entrepreneur who was seeking an injunction. She involved a third party by email who had no knowledge of the dispute. The statement in question was then only made as a reaction to this, so that unfairness could not be assumed after a corresponding overall assessment of the circumstances:
“In this overall assessment, it is crucial to take into account that it was initially the applicant who approached company1 – albeit with the consent of the defendants – with a view to handing over the material. When the latter then pointed out that this could only be done with the consent of the defendants, the applicant was the first to allege a breach of contractual obligations “
Small group of recipients and low materiality of the statement
It also played a role for the court that the statement was only made to a third person and that there was “no significant accusation, such as a criminal offense, that would significantly damage the applicant’s reputation”:
“According to the two emails from the claimant and the defendant, Company1 merely had the impression that both parties disagreed about their contractual obligations. Such differences of opinion, which are not uncommon in business life, do not reach the intensity of accusations of criminal offenses or ethically and morally reprehensible behavior.”
No disparaging statement
As a result, it can be stated that not every verbal “scuffle” – even involving third parties – triggers a claim for injunctive relief under fair trading law. At least in the context of statements that are not serious and relevant under criminal law, it will also be possible to react appropriately towards individual third parties – even though this may be perceived as damaging to business in individual cases.