In the opinion of the Higher Regional Court of Hamm, the entry of the business purpose“Provision of all services of a law and tax consultancy partnership” in the partnership register already establishes the risk of first offense with regard to the violation of the advertising ban of Section 8 StBerG. In the specific case, none of the partners of the partnership were listed as tax advisors in the tax advisor register of the Federal Chamber of Tax Advisors:
The entry of the business purpose in the partnership register combined with the defendant’s extrajudicial assertion that the content of the entry corresponds to the actual entitlement to provide assistance in tax matters justifies the assumption of a risk of first occurrence. A risk of first occurrence is to be assumed if there are serious and tangible factual indications that the defendant will behave unlawfully in the manner in question in the near future. A risk of first occurrence can also be established by anyone who famously claims the right to perform certain acts (BGH, loc. cit., para. 32).
As with the registration of a sign as a trademark (cf. BGH, judgment of 23.09.2015 – I ZR 78/14 [Sparkassen-Rot/Santander-Rot]), it must be assumed when registering a company in the partnership register that B will be offering services for the registered business purpose in the near future as well as advertising for these services. This assumption is supported by the fact that the purpose of the registration was precisely to establish a partnership for the purpose of offering tax advisory services and that all partners are involved in the provision of such services. In addition, the defendant famously confirmed the accuracy of the registration out of court. Insofar as the defendant refers to the fact that the entry in the partnership register says nothing about how he will conduct business with B, this is not able to refute the risk of first infringement. According to the following statements, any advertising by B for assistance in tax matters in Germany, however it is structured, would not be permissible. The defendant itself does not claim that it does not wish to advertise for such services. It is also not necessary for the exact form of future advertising to be known. The only decisive factor is whether there is a risk of anti-competitive advertising.
As a result, the plaintiff chamber of tax consultants was right to demand that the company cease and desist from the misleading advertising (OLG Hamm, judgment of January 7, 2020, Ref.: 4 U 88/18).