The plaintiff operates an online shop selling, among other things, food supplements for geckos, while the defendant also sells food supplements for humans online. The plaintiff had used incorrect withdrawal instructions in his online store. The defendant warned him about this and demanded reimbursement of his out-of-court legal fees. The plaintiff, in turn, had hired a lawyer for his legal defense.
The plaintiff wanted to use the lawsuit to obtain reimbursement of his legal fees. He took the view that the warning was not only unjustified and therefore did not justify a claim for reimbursement of warning costs, but that the warning was also an abuse of rights, so that he should be reimbursed for the legal costs necessary for his defense in accordance with Section 8 para. 4 sentence 2 UWG, the lawyer’s fees required for the defense were to be reimbursed.
The Regional Court of Cologne had dismissed the claim for reimbursement of the plaintiff’s out-of-court legal fees at first instance because it considered the warning to be unjustified but not an abuse of rights. In its ruling dated February 28, 2020, the 6th Civil Senate of the Higher Regional Court of Cologne partially amended the judgment of the Regional Court of Cologne dismissing the action and awarded the plaintiff out-of-court legal fees from an amount in dispute of € 5,000.
In its reasoning, the Senate essentially stated that the defendant had based the warning on an aspect that was obviously not suitable to establish a competitive relationship. Entrepreneurs who sell food and food supplements for geckos are obviously not in competition with entrepreneurs who sell food supplements for humans. From the obvious lack of a competitive relationship, it can be concluded that the defendant was not – and certainly not primarily – concerned with stopping the infringement of competition. The defendant had obviously not looked at the content of the plaintiff’s website because it would then have noticed that referring to food supplements to establish a competitive relationship was absurd.
From the point of view of a commercially minded entrepreneur, the plaintiff’s incorrect cancellation policy could not affect the economic interests of a store operator who has nothing to do with Geckos but otherwise sells a variety of different products, especially not with the argument that both sell dietary supplements. The driving force and the dominant motive for the warning was not the unfairness of the opponent’s conduct and its own concern as a competitor, but other extraneous motives were obviously in the foreground. The plaintiff therefore received acc. § 8 Abs. 4 sentence 2 UWG, the plaintiff is therefore entitled to compensation for the expenses necessary for his legal defense.
The Senate did not allow the appeal.
(OLG Cologne, judgment of February 28, 2020, Ref. 6 U 238/19; press release of the Higher Regional Court of Cologne of March 25, 2020 (PDF)).