LHR obtains preliminary injunction against used software dealer before Cologne Regional Court due to ‘non-binding price recommendation’
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At the request of Lampmann, Haberkamm & Rosenbaum Rechtsanwälte (LHR), the Regional Court of Cologne (Regional Court of Cologne, decision of 14 June 2016, case no. 31 O 183/16) issued a unilateral injunction against a retailer of “used’ software.
This prohibits retailers from advertising ‘used’ and / or ‘OEM’ software with prices that are set against a higher price, which is referred to as the ‘RRP’.
In the event of infringement, a fine of up to € 250,000 or up to six months’ imprisonment may be imposed.
The decision has been issued by way of a ruling. A final decision is reserved for proceedings on the merits. Unless the retailer recognises the ruling as a final ruling.
Misleading price advertising
The Cologne Regional Court thus followed the client’s argument that the specific price advertising was misleading. ‘RRP’ is generally understood and used as an abbreviation for “non-binding sales price” or “recommended retail price”. The recommended retail price is the price recommended by the manufacturer, importer or wholesaler as the resale price to the customer.
However, Microsoft or the original equipment manufacturer does not have such a price recommendation with regard to the ‘used software’ or ‘OEM goods’ offered. This is because Microsoft does not produce the Windows versions in isolation for retail sale to end consumers. For this reason, Microsoft does not provide ‘recommended retail prices’.
In addition to the claim for injunctive relief, there are claims for damages, which the represented retailer will assert in separate proceedings. (la)
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