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Case detail



Directive article Article 8 al1
Annex I al2 26.
National ID 6 U 90/08
Country Germany Decision date 29/01/2009
Common name 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) gravestone dealer - name not disclosed
Subject unwanted solicitations
Keywords aggressive commercial practicesunwanted solicitations

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Headnote

It constitutes an unlawful pestering advertisement according to Sec. 7 UWG (the German Unfair Competition Act), if a company that deals with gravestones sends advertisements for its products to family members shortly after the death of a relative.

Two weeks after the decease, however, sending such advertisement letters no longer constitutes an unfair commercial practice.

Facts

The defendant, a gravestone dealer, sent a letter advertising its gravestones to the relatives of a deceased person, shortly after the death had taken place.

The plaintiff requested a cease-and-desist order for comparable commercial practices for the duration of four weeks after the death of a relative.

Legal issue

Is a letter from a company which advertises gravestone, sent shortly after the death of a relative, an unacceptable disturbance in the sense of § 7 UWG (the German Unfair Competition Act)?

Decision

The court found that such advertisement constitutes a violation of § 7 para. 1 UWG if it is sent to relatives within two weeks after the decease. According to the court, such advertisement may hurt the feelings of the bereaved as they may find it immoral if shortly after the death of a close relative this bereavement is used for the commercial purposes of third parties.

The court found such advertisement therefore unacceptably disturbing. However, two weeks after the death, sending such advertisement was considered acceptable by the court.

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Result

The plaintiff's request was granted.

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