Nuremberg Higher Regional Court, 16 October 2010, Ref.: 3 U 914/10
The advertising of products or services is subject to strict conditions in Germany.
According to Section 5 (1) No. 1 of the German Act against Unfair Competition (UWG), a commercial act (advertising) is misleading if it contains untrue statements or other misleading statements about essential characteristics of the goods or services. The law lists the availability, type, design, benefits, risks, composition or accessories of the products or services as such characteristics, for example. If a competitor makes false statements about such characteristics of his product in his advertising, other competitors are entitled to injunctive relief pursuant to Section 8 (1), Section 3, Section 5 (1) sentence 2 no. 1 UWG.
In the above-mentioned decision, the Higher Regional Court of Nuremberg now had to decide whether a food discounter may sell a CD labelled "100 Number 1 Hits" if this CD contains partial re-recordings, i.e. new recordings of former No. 1 hits, and the CD only contains a reference to this that is difficult to recognise.
FactsThe defendant (food discounter) had a CD collection in its range labelled "100 Number 1 Hits" and sold it for €4.99. In fact, some of the recordings were so-called re-recordings, i.e. new recordings of former No. 1 hits. In fact, some of the recordings were so-called re-recordings, i.e. new recordings of former No. 1 hits. However, the buyers were only informed of this fact by a small lettering on the CD sleeve, which the buyers could only recognise after removing the cellophane sleeve. The plaintiff (Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V.) recognised this as anti-competitive and sued for an injunction.
Nuremberg Higher Regional CourtThe OLG Nuremberg followed the plaintiff's opinion. In the opinion of the judges, the conformity of melody, lyrics and performer was not sufficient to satisfy the buyer's expectation of having bought the expected No. 1 hits. Rather, with this advertising, the buyer had the expectation of acquiring the original recordings of the time. In this respect, the advertising was misleading without sufficient information and therefore anti-competitive.
Source: Nuremberg Higher Regional Court
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