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Case detail



Directive article National ID 6 U 133/09
Country Germany Decision date 05/11/2009
Common name LOTTO-MusikDING Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Frankfurt am Main) Plaintiff(s) not disclosed
Court translation Higher Regional Court (Frankfurt on the Main) Defendant(s) lottery company - name not disclosed
Subject games of chance
Keywords advertisementauthorisationgames of chanceprizes

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Headnote

The requirements of § 4 No. 11 UWG (the German Unfair Competition Act) are not fulfilled if the market behaviour that has been objected to, has been authorised by an administrative act.

Facts

The defendant, a federal lottery company, advertised a lottery with a special prize (concert tickets), both online and through printed flyers.

 

According to § 5 I and II GlüStV, advertisements for gambling with an inviting character are prohibited: they have to be restricted to mere information about the possibility to gamble. The defendant had, however, received a permission from the responsible German authority for this individual case.

The plaintiff was nevertheless of the opinion that this was a violation of § 4 No. 11 UWG (the German Unfair Competition Act) in connection with §§ 4, 5, 6 GlüStV (the German Interstate Gambling Treaty) and requested a cease-and-desist order for the advertisement.  According to the plaintiff, the advertised special prize constitutes an advertisement for participation in the lottery. 

Legal issue

Can a behaviour which was permitted by an administrative authority be a violation of the unfair competition act?

Decision

 

An officially authorised behaviour cannot qualify as a violation of unfair competition law, provided that the respective permission is not void. The UWG (German Unfair Competition Act) is not violated if the behaviour was permitted by the competent German authority.
 
However, advertisements for online gambling is strictly prohibited according to § 5 III GlüStV, and therefore constitutes a violation of § 4 No. 11 UWG. This practice was not -- and could not be -- permitted by the German competent authority. 

  URL Decision Decision full text
DE N/A
EN N/A

Result

The request of the plaintiff was denied in regard to the disputed advertisement within the flyer, but granted in regard to the advertisement within the internet.

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