District Court of Essen, November 13, 2014, Case No.: 4 O 97/14
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act). However, the decision is likely still relevant in content. You can find an overview here. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
According to Section 3, Paragraph 1 of the Act Against Unfair Competition (UWG), unfair commercial practices are prohibited if they are likely to significantly impair the interests of competitors, consumers, or other market participants. Sections 4 to 7 of the UWG, in turn, provide illustrative examples of unfair competition, misleading advertising, comparative advertising, and unreasonable harassment.
Anyone who engages in a business practice that is unlawful under these regulations can be subject to claims for removal and, in case of risk of repetition, for injunction by a competitor, as per Section 8 UWG.
In the case discussed here, the landlord of a holiday apartment advertised this apartment on the internet. The website did not contain sufficient legal notice (imprint). As a result, the landlord was sued for an injunction and damages by a competitor. The court’s decision is particularly notable for clearly outlining the requirements under which a party can be classified as a competitor.
You can create a personalized and free imprint using our imprint generator.
Court Proceedings: Dispute Over Holiday Apartment Rental
Facts
In this case, two parties are involved, both of whom rent out holiday apartments. The plaintiff operates the website www…de and offers holiday apartments on C. The defendants are the owners of a holiday apartment on C, which they have been renting out for several years through various platforms such as J and C1.
In March 2014, the defendants‘ holiday apartment was also temporarily advertised on the website www…de, which was created and published online in 2007 by Defendant 1. The domain also belongs to Defendant 1.
Outdated and Incomplete Content on the Website
According to the plaintiff, the content posted on the website www…de in March 2014 was outdated and incomplete. The price list was from 2010, and some texts were either incomplete or missing entirely. Additionally, some of the images of the holiday apartment were rotated. Between March 11 and March 17, 2014, the only provider information listed was „Family I,“ without any further details such as first name or address.
Cease-and-Desist Notice by the Plaintiff
On March 19, 2014, the plaintiff, through her attorney, issued a cease-and-desist letter to the defendants. She demanded a penalty-based cease-and-desist declaration and reimbursement of legal costs amounting to €382.70. The defendants refused to submit a cease-and-desist declaration because no power of attorney had been presented. On May 1, 2014, Defendant 1 initiated the deletion of the domain.
The plaintiff subsequently filed a lawsuit for an injunction and damages related to the legal costs, based on a disputed amount of €10,000.
Decision of the District Court of Essen
The District Court of Essen ruled in favor of the plaintiff. It found that the plaintiff had a right to an injunction pursuant to Sections 8, Paragraph 1, Sentence 1, 3, and 4 No. 11 UWG in conjunction with Section 5 TMG. Furthermore, the plaintiff was entitled to file a claim as a competitor under Sections 8 Paragraph 3 No. 1, 2 Paragraph 1 No. 3 UWG.
Competitive Relationship Between the Parties
The court recognized a concrete competitive relationship between the parties, as both rent out holiday apartments on C and therefore target the same customer base. Even if the plaintiff was possibly only acting as an intermediary, this did not change the competitive situation. It was irrelevant whether the apartments were offered at the same level of the market or whether the facilities differed.
Unfair Conduct by the Defendants
The court found a violation of Section 5, Paragraph 1 No. 1 TMG. According to this provision, service providers offering paid services must provide complete information about their identity. During the relevant period, the website www…de lacked both a full name and a contactable address.
Defendant 1, as the domain owner, was held responsible for this, as she had created and posted the website. Defendant 2 was also held liable as a co-infringer, since he rented out the holiday apartment and was aware of the advertisement on the website at least since the cease-and-desist letter was issued.
Significant Violation of Section 5 TMG
The violation of Section 5 TMG was deemed significant within the meaning of Section 3, Paragraph 2 UWG. The defendants‘ argument of a minor violation was dismissed, as the absence of provider identification violated a legal provision intended to ensure transparency in market activities. The argument that the website had been activated accidentally was also dismissed, as fault is not a prerequisite for the duty to cease under Section 8, Paragraph 1, No. 1 UWG.
Conclusion
The District Court of Essen ruled in favor of the plaintiff. The defendants were ordered to stop the unfair advertising on the website www…de and to cover the legal costs of the cease-and-desist letter.
Source: District Court of Essen
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