This prohibits him from appealing to the sympathy of his fans to buy his DVDs by claiming in a post in a Facebook group that a business partner is trying to block his film project by all means.
The Chamber has threatened the defendant with an administrative fine of up to € 250,000.00 or imprisonment and set a value in dispute of € 50,000.00 (LG Frankfurt, Beschluss v. 9.10.2018, Az. 3-06 O 81/18).
The decision is not final and can be challenged by means of an appeal. In addition, the defendant could force the applicant to bring an action on the merits.
What had happened?
The defendant had published a post in a public Facebook group for which he was responsible, in which he advertised his films and projects and the corresponding DVD/BlueRays and associated merchandising material, in which he claimed with regard to a business partner (meaning the applicant) that the latter was difficult and was trying to block a certain film project by all means.
In order to win the ‘battle’ (against this business partner), the company needs the support of the community, which should please order the DVD/BluRays (only) in its shop and also inform friends and acquaintances accordingly.
One warning was unsuccessful
Understandably, the applicant did not want to put up with this disparaging (pity) advertising. After an unsuccessful warning, the applicant was forced to take legal action against the statements.
Frankfurt Regional Court sees unauthorised (pity) advertising
The Regional Court agreed with the applicant that the Facebook post constituted a disparaging or unobjective and misleading commercial act that was to be refrained from immediately.
Although the decision was issued without detailed reasons, it was explicitly based by the court on a violation of Section 4 No. 1 UWG, so that it can be assumed that the court considered the statements in the application to be correct:
Critical allegations about competitors are not prohibited per se. However, public criticism in competition requires an urgent interest in information on the part of the public. There must be sufficient cause for the criticism, namely an interest in clarification worthy of protection on the part of the public addressed, and the nature and extent of the criticism must remain within the bounds of what is necessary or objectively required (BGH GRUR 2012, 74 Rn 37 – Coaching-Newsletter; OLG Köln WRP 2011, 779, 780). The advertising contribution did not fulfil these requirements in several respects. It was therefore inadmissible in accordance with §§ 4 No. 1 UWG.
Explicit mention is not a prerequisite for recognisability
The fact that the defendant does not explicitly mention the applicant as the intended ‘partner’ does not prevent her from being affected, as she is nevertheless easily recognisable as such (vgl. Köhler/Bornkamm/Feddersen/Köhler UWG § 4 Rn. 2.12). This is because it was the only ‘partner’ – indeed the exclusive holder of the rights of use – with regard to the marketing of the film. The former is mentioned in several relevant places on the Internet, not least on the applicant’s own website.
Even if the applicant could only be considered as one of several affected parties alongside several service providers with regard to production as a whole, this would be harmless. Only in the case of attacks against a conspicuously large group of people can the suitability for damaging the credit of the individual be lacking (vgl. Köhler/Bornkamm/Feddersen/Köhler UWG § 4 Rn. 2.12).
Blanket reduction is always inadmissible
Ultimately, the recognisability of the applicant is not even decisive. This is because Section 4 No. 1 also covers the blanket devaluation of unnamed competitors and their goods and services (vgl. BGH GRUR 2010, 349, Tz. 38 – EKW-Steuerberater; OLG Hamburg GRUR-RR 2010, 257).
The assertion that the applicant was blocking the project by all means was also incorrect. However, it did not even matter whether the statement was true or not, or whether it was a statement of fact or an expression of opinion. In this case, the fact that the specific circumstances to which the disparaging statement is supposed to refer were not communicated and the criticism therefore had no recognisable factual reference was an aggravating factor. Such generalised disparagement is in any case inadmissible pursuant to Section 4 No. 1 UWG (BGH GRUR 2012, 74 Rn. 37 – Coaching-Newsletter; BGH WRP 2014, 548 Rn. 24 – englischsprachige Pressemitteilung; OLG Frankfurt WRP 2014, 1098 Rn. 27).
Disclosure: Our law firm represented the applicant.
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