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Case detail



Directive article Article 8 al1
Article 9 al1
Annex I al2 26.
National ID 4Ob74/11b
Country Austria Decision date 09/08/2011
Common name Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s)
Court translation Supreme Court (Vienna) Defendant(s)
Subject unwanted solicitations
Keywords advertisementblack listdistance contractingunordered productunwanted solicitations

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Headnote

The use of advertisements on the property of consumers, without the consumers' consent, constitutes an aggressive commercial practice.

Facts

The first plaintiff is the operator of a 00.00-24.00 lock and key service in Vienna, the second plaintiff its exclusive associate and business leader, advertising the business by affixing advertising labels in various houses without prior approval of the tenants or owners; even if explicitly prohibited by tenants or owners.
 

The defendant, an association combating Unfair Competition, requested the plaintiffs to cease fixing the advertising labels within the houses, since, according to the defendant, the plaintiffs' practice is aggressive according to §1a UWG. The labels are, furthermore, to be characterized as a distance selling media according to § 1a UWG, Annex I item 26.

The court in first instance was asked by the defendant to rule on these facts and awarded an injunction prohibiting the plaintiffs' actions. The plaintiffs appealed to this decision, but the court in second instance approved the first decision. The plaintiffs appealed again.
 

Legal issue

Does the use of advertisements on the property of consumers, without the consumers' consent, constitute an aggressive commercial practice?

Decision

The Austrian Supreme Court considered the advertising labels as distance selling medias in the meaning of § 1a Abs 3 UWG related to Z 26 Annex UWG and, therefore, aggressive.

  URL Decision Decision full text
DE http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20110809_OGH0002_0040OB00074_11B0000_000&ResultFunctionToken
EN N/A

Result

The plaintiff’s appeal was denied.  

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