Berlin Higher Regional Court, 21.09.2012, Case No.: 5 W 204/12
Please note: The TMG has been replaced by the DDG, and the content of this article is up to date. 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 Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant.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.
In Germany, anyone who offers telemedia services commercially on the Internet must provide a provider identification or an imprint on their website.
This imprint must contain certain minimum information, which can vary greatly depending on the operator of the website.
According to § 5 DDG, these general information obligations apply to „commercially operated telemedia, which are generally offered for a fee.“
The feature of being offered for a fee requires a financial consideration. Therefore, telemedia that are provided without the background of a business activity (e.g., private homepages, weblogs (blogs), or information offerings by non-profit associations) are not subject to the information obligations of the Telemedia Act.
You can create a personalized and free imprint using our imprint generator.
There have been repeated legal disputes, particularly involving business websites of companies, about whether companies operating the websites must also provide the names of their authorized representatives and whether the failure to provide these names constitutes a minor violation.
For example, the following decisions should be noted:
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- Düsseldorf Higher Regional Court, 18.12.2007, Case No.: I-20 U 17/07
- Berlin Higher Regional Court, 11.04.2008, Case No.: 5 W 41/08
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With the above-mentioned ruling of the Berlin Higher Regional Court from 21.09.2012, the court once again had to decide on a case where a company operating a website failed to provide the names of the authorized representatives.
Facts of the Case:
A French company lacked an authorized representative in the imprint.
A French company, which was a SARL, the French equivalent of a German GmbH, had failed to include the names of the authorized representatives of the company in the imprint on its German website.
Thus, the French company clearly violated the provisions of § 5 para. 1 no. 1 TMG and § 312c para. 1 BGB.
For this reason, a German competitor issued a formal notice to the French company, charging a fee.
Although the French company subsequently amended its imprint, it refused to issue a sufficiently penalized cease-and-desist declaration.
The company issuing the notice then applied to the Berlin Regional Court for a preliminary injunction.
Decision of the Berlin Higher Regional Court:
The Berlin Higher Regional Court did not follow the request of the German company but ruled that this was a minor case and that it was not apparent how this could constitute a competition violation.
The complaint filed against this decision was also fully dismissed on the grounds that this violation does not automatically lead to a competition violation under § 4 No. 11 UWG.
This was particularly based on European law, as neither Article 5 para. 1 of Directive 2000/31/EC (Directive on electronic commerce) nor Article 4 para. 1 of Directive 97/7/EC (Consumer Protection Directive in Distance Contracts) requires the name of an authorized representative of a capital company to be provided.
You can create a personalized and free imprint using our imprint generator.
Source: Berlin Higher Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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