What had happened?
The spa utensils were ‘Made in China’, yet the retailer described himself as a ‘Whirlpool manufacturer’, thereby gaining the trust of customers who mistakenly assumed that they were buying high-quality local products from this Whirlpool retailer.
The Regional Court of Cologne (LG Köln, Beschluss v. 10.1.2017, Az. 31 O 416/16) therefore issued a one-piece injunction against the retailer at LHR’s request. This prohibited him from referring to himself as a manufacturer or specialist retailer with many years of experience and threatened him with a fine of up to €250,000 or up to six months’ imprisonment in the event of non-compliance.
We covered it here:
90,000 € administrative fines
However, the retailer refused to comply with the court ban and continued to advertise that he was an (experienced) manufacturer of whirlpools. The Regional Court of Cologne therefore had to impose an amount of almost €90,000 over a period of one and a half years and in the form of six administrative orders in order to bring the debtor to heel.
As the Whirlpool retailer did not refrain from portraying itself as a Whirlpool manufacturer in its public image despite a legally binding injunction and numerous orders to cease and desist, LHR filed a criminal complaint against the managing director of the online retailer on behalf of the real Whirlpool manufacturer and its sales partners.
Criminal charges for criminal advertising
The existence of criminal advertising (according to § 16 UWG) and the violation of the duty of supervision in companies and businesses (according to § 130 OwiG) were examined by the responsible public prosecutor’s office in Mosbach. Although the proceedings were discontinued, this was not because the online retailer was not guilty of either offence, but solely due to minor culpability or a lack of public interest (according to § 153a Abs. 1 StPO) – and because the managing director of the online retailer had since relented and fulfilled the requirements.
We reported here:
Record: a total of 9 applications for regulatory orders
It is still not clear to us today whether the retailer simply paid these amounts out of petty cash because the advertising was so lucrative or whether it generally does not comply with court decisions. In any case, it was a not inconsiderable effort for our law firm and also for the courts responsible for the decision, the Regional Court and the Higher Regional Court of Cologne, to identify and document the numerous infringements and to make each of them the subject of an application.
Our law firm had to file a total of nine (!) applications for regulatory orders. The only reason why no decision was made on the last three was because the retailer finally agreed to a settlement under the pressure of the financial burden. A record-breaking number that is probably unrivalled.
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