District Court of Munich I, June 3, 2014, Case No.: 33 O 4149/14
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act).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 Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant.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.
In most competition law disputes, the primary focus is on asserting claims for injunctive relief. This is also true in cases involving the lack of provider identification (Impressum) on websites.
These claims should first be pursued out of court through a cease-and-desist letter. If the demands (cease-and-desist declarations with a penalty clause) are not voluntarily or adequately complied with by the warned party, the claim for injunctive relief must be enforced in court.
This can be done through an injunction or by way of provisional legal protection. Provisional legal protection, in the form of a preliminary injunction, is intended to temporarily settle a dispute.
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In the case presented here, the District Court of Munich I had to decide, within the framework of preliminary injunction proceedings, whether a lawyer was obliged to submit a cease-and-desist declaration to another lawyer because the latter did not have an Impressum on his XING profile.
Facts of the Court Case
Absence of an Impressum on a lawyer’s Xing profile
In this preliminary injunction case, the applicant was a lawyer and owner of a profile on the platform „XING“ as part of a premium membership. The respondent, also a lawyer, used a basic profile on „XING.“ The platform offers users different types of memberships, including premium and basic.
The dispute arose because the respondent did not have an Impressum on his Xing profile. As a result, the applicant issued a cease-and-desist letter to the respondent on February 4, 2014, demanding a cease-and-desist declaration with a penalty clause, which was not provided. The applicant argued that according to § 5 TMG and § 55 RStV, there is an obligation to include an Impressum for business profiles, and the respondent’s Xing profile was being used for marketing purposes.
Verteidigung des Antragsgegners: Keine Impressumspflicht
Defense of the Respondent: No Impressum RequirementThe respondent disputed the need for an Impressum on Xing. He argued that the Impressum requirement under § 5 TMG only applies to „commercial telemedia, usually offered for a fee.“ He also claimed there was no urgent reason for an injunction, as the applicant delayed the proceedings by filing at a court lacking jurisdiction and requesting an extension of the deadline.
Decision of the District Court of Munich I
The District Court of Munich I ruled that the application for a preliminary injunction was admissible but unfounded.
Grounds and Claim for Injunction
The court acknowledged the urgency under § 12(2) UWG (Act Against Unfair Competition), as the applicant filed the application in a timely manner. Neither the filing at a court without jurisdiction nor the extension of the deadline affected the urgency.
However, the court denied the claim for injunctive relief. It determined that both parties were competitors under § 2(1) No. 3 UWG, as they offered similar services and were in competition with each other. The respondent’s Xing profile was considered a commercial activity because it was objectively aimed at promoting his law firm’s services.
Impressum Requirement under § 5 TMG
The court ruled that the Impressum requirement under § 5 TMG applies to commercial telemedia. Since the respondent’s Xing profile was used for professional purposes, it was subject to this requirement. The absence of an Impressum therefore violated § 4 No. 11 UWG in conjunction with § 5 TMG.
No Significant Impairment
Nevertheless, the court rejected the competitive relevance of the violation. It lacked evidence of a significant impact on the interests of competitors or consumers. Specifically, the applicant did not demonstrate that any actual client relationships were established through the respondent’s basic Xing profile. Therefore, the violation lacked the commercial relevance required under § 3 UWG to classify it as unfair competition.
Summary
The District Court of Munich I concluded that although the respondent had violated the Impressum requirement under § 5 TMG, this violation did not have any significant competitive relevance in the specific case. Consequently, the application for a preliminary injunction was dismissed.
Source: District Court of Munich I
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