Article 5 1.
Article 5 2.
Article 5 3.
|National ID||6 U 26/08|
|Common name||Decision type||Court decision in appeal|
|Court||Oberlandesgericht - OLG (Köln)||Plaintiff(s)|
|Court translation||Higher Regional Court (Cologne)||Defendant(s)|
|Keywords||terms & conditions, contract law, unfair competition|
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General terms and conditions do not qualify as legal norms, and can therefore not constitute a violation of § 4 No. 11 (regarding market conduct rules) of the German Unfair Commercial Practices Act.
The defendant used an invalid clause in its general terms and conditions, which stated: "The company reserves the right to provide customer data to other companies in a legitimate way for the purpose of the dispatch of information and reserves the right to use customer data for its own promotional purposes."
The plaintiff requested a cease-and-desist order for the use of this clause, based on § 4 No. 11 UWG (the German Unfair Competition Act) in connection with §§ 305 et seq. BGB (German Civil Code).
§4 No. 11 UWG can be invoked in case of a violation of a law regulating the market conduct. Therefore, the use of an invalid clause within general terms and condition could constitute a violation according to § 4 No. 11 UWG if general terms and conditions -- or §§ 305 et seq. BGB, which regulate general terms and conditions -- qualify as a legal norm which regulate market conduct.
Are invalid general terms and conditions able to constitute a violation of § 4 No. 11 UWG (the German Unfair Competition Act)?
|URL Decision||Decision full text|
The plaintiff's request was denied with regard to the German Unfair Competition Act, but granted on the basis of other German law regulations.
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