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Case detail



Directive article Article 2 (e)
Article 7 1.
Article 7 5.
National ID I-4 U 192/07, 4 U 192/07
Country Germany Decision date 13/03/2008
Common name Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Hamm) Plaintiff(s)
Court translation Higher Regional Court (Hamm) Defendant(s)
Subject material distortion
Keywords identity of the tradermaterial distortionmisleading omissions

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Headnote

The complete absence of any reference to the company register and the company registration number on a website constitutes an unfair commercial practice. This can no longer be regarded as a bagatelle under unfair competition legislation since the UCP Directive came into force, in particular when it is difficult for a consumer to independently obtain information about the company.

Facts

An internet service provider did not reveal any information on its website regarding the commercial register where its company was registered, nor about its company registration number.

The internet service provider was organised as a "Limited" type of company, for which consumers cannot obtain any information from an independent body.

The plaintiff requested to cease and desist this commercial practice.

Legal issue

Does the failure to communicate the company register and the company registration number data constitute an unfair commercial practice? 

Decision

The court found that, since the UCP Directive came into force, the German Unfair Competition Act (UWG) has to be interpreted in the light of the UCP Directive.

According to the first draft of the new UWG of the German ministry of justice, Sec. 3, para. 2, 2nd sentence UWG holds that a commercial practice must noticeably impair the economic behaviour of consumers in order to be prohibited. This will be the case when a consumer protection provision of a European Directive or European Regulation would be violated in such a way that obligatory information duties are infringed. According to the court, such information duty also includes the requirement to convey the company registration number, as set forth by article 5 of the eCommerce Directive (2000/31/EC) and implemented by Sec. 5 of the German Telemedia Act. Therefore, according to the court, the absence of such information constitutes a violation of §3 UWG.

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Result

The plaintiff's request was granted.

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