Berlin Regional Court, 07.12.2010, Ref.: Ref. 16 O 560/10
In Germany, the advertising of products or services is subject to strict conditions. According to Section 5 (1) No. 1 of the Unfair Competition Act ("UWG"), a commercial act (advertising) is misleading if it contains untrue statements or other misleading statements about essential characteristics of the product or service. The law lists the availability, type, design, advantages, 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.
The Regional Court now had to decide in interim legal protection proceedings whether the German Atomic Forum e. V. ("DAtF") was allowed to show the Unterweser nuclear power plant together with wind turbines from the East Frisian company Enercon in four different adverts as part of its public relations work.
FactsAs part of its public relations work in favour of nuclear energy, the German Atomic Forum had shown a photo of the Unterweser nuclear power plant in four advertisements, into which several wind turbines from the East Frisian company Enercon had been retouched by means of photomontage. Deutsches Atomforum e. V. is a lobby organisation of companies, institutions and individuals that campaigns for the economic use of nuclear energy.
The Enercon wind turbines were easy to spot in the photo, as the lower parts of Enercon turbines are always painted with a graduated green colour, which is the registered trademark of Enercon wind turbines.
Above the photo was the sentence "Climate protectors among themselves - Unterweser nuclear power plant and wind energy: CO2 emissions = zero".
The company Enercon considered this installation to be a violation of competition law and filed an injunction against the image.
Source: Berlin Regional CourtThe Berlin Regional Court followed Enercon's view. According to the court, the German Atomic Energy Forum was attempting to transfer the good reputation of wind energy to nuclear power in an anti-competitive manner through the advert. Contrary to the general view of the nuclear lobby, the court also emphasised the competitive relationship between renewable energies and nuclear energy.
Source: Berlin Regional Court
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