Contractor shall be liable for defective Yellow Pages Listings, even if he did not turn, from knowledge of illegal entries

But an interferer already be liable for infringement of a competitive transport duty for the erroneous entries from knowledge of the illegality. It is not disputed her was because of the complaint by the Department beginning 2013 known, that are connected to them were faulty entries in directories and a violation of § 49 Abs. 4 S. 5 Passenger Transport Act constituted. Then it corresponded but the commandment professional care (§ 3 Abs. 2 S. 1 UWG), to ensure, that the entries were corrected.

OLG Köln judgment of 12. December 2014 to Az. 6 You 101/14

On appeal, the defendant is on 15. 5. 2014 announced the verdict 2. Commercial Chamber of the District Court of Bonn – 12 The 4/14 – partially amended and restated as follows:

The interim order of the District Court of Bonn 28. 2. 2014 is partially amended and restated as follows:

I. The defendant is prohibited, acting in competition for the transport of persons occasional services with Car Rental

1. in public phone directories by entering their contact information under the heading “Taxi” to advertise or to advertise, as displayed below:

“The following is a graphical representation”

and / or

“The following is a graphical representation”

and / or

“The following is a graphical representation”

and / or

“The following is a graphical representation”

and / or

“The following is a graphical representation”

and / or

“The following is a graphical representation”

2. with the label “Taxi” to advertise or to advertise, as displayed below:

“The following is a graphical representation”

and / or

“The following is a graphical representation”

and / or

“The following is a graphical representation”

II. The defendant is for each violation, a fine of up to 250.000 EUR, threatened substitute administrative detention or imprisonment of up to six months, the administrative detention may not exceed two years and is to take place at the manager of the defendant.

III. The costs of the proceedings, including any appeal bear the applicant to 10 % and the defendant to 90 %.

IV. The amount in dispute on the method of First Instance (extent in amendment of the Landgericht fixing) and the appeal process is to 30.000 Shall be EUR.

Reasons

(instead of facts and grounds of decision in accordance with § 540 Abs. 1 ZPO)

I.

The parties disagree as to advertising by the defendant in Internet editions of telephone directories, and in its offices within T and M. The applicant has criticized following entries in directories, each by entering the search terms “Was: Taxi” and “Where: T” respectively “Where: M” could be called:

Directory

“Entry”

Phone Number

Branchenangabe

Yellow Pages

“Entry”

“Phone Number”

Car Hire Transport

The Local

“Entry”

“Phone Number”

./.

The Local

“Entry”

“Phone Number”

./.

The Local

“Entry”

“Phone Number”

./.

The phone directory

“Entry”

“Phone Number”

Taxi

Yellow Pages

“Entry”

“Phone Number”

Taxi Services

The Local

“Entry”

“Phone Number”

./.

The phone directory

“Entry”

“Phone Number”

Taxi

On the premises of the defendant visible billboards were installed from the outside, on which it mutatis mutandis, each in conjunction with the company name of the respondent, called:

“Taxi?

Rental car?

Compare!”

The defendant has defended so, in the allocation of their business to the industry “Taxi Services” I traded it for a mistake by the Publisher. After beginning 2013 the competent regulatory authorities have objected to this ad, they already have under the 1. 4. 2013 sent a fax to the publisher, in which they have been pushing for the correction.

The District Court of Bonn has objected to the promotional activities prohibited by injunction and confirmed by the contested judgment. For further details, reference is made to the judgment of the District Court (§ 540 Abs. 1 No.. 1 ZPO).

With its form-- and timely inserted and reasoned appeal followed the defendant further the goal of lifting the injunction and the rejection of the directed their adoption application. As grounds argues in particular, the phone number (02XXX) X XX X9 is not their, but another company “N D T2 C GmbH” associated with the seat in the L Street XXX in T.

The applicant defends the judgment under appeal and submits, whether the respondent, after the undisputed top 2013 was pointed out by the regulatory authority to the faulty Advertising, been obliged to, to provide for their elimination. The fax of 1. 4. 2013, which they deny Shipping, in that regard also not been sufficiently, because the defendant was under a duty, to monitor adherence to their instructions.

II.

After the applicant has withdrawn its application, insofar as they both with the phone number (02XXX) X XX has objected X9 marked items, remains the appeal of the respondent, is where they have to decide whether they, without success.

1. The applicant is entitled to injunctive advertising, as was done in the phone book entries, from §§ 3, 4 No.. 11, 8 Abs. 3 No.. 3 UWG i. In. m. § 49 Abs. 4 S. 5 Passenger Transport Act to.

a) The defendant does not take into doubt, that the disputed records a violation of § 49 Abs. 4 S. 5 Constitute Passenger Transport Act, as the district court elaborated with True Reason.

b) The defendant is responsible for the yet to be evaluated entries.

From the perspective of the Senate speaks a prima facie proof of this, that these entries so, as they appeared in the directories, are also due to the defendant. Since the defendant himself has argued, the entry in the “Yellow Pages” from a contract, would have been expected – as required by the applicant -, that this Agreement shall be submitted to, which has not happened in the court of appeal.

However, the applicant has already submitted in the first instance email the responsible publisher, from which it follows, that the business listing for phone number M (02XXX) XX XX X5 is based on a misunderstanding of the publisher, of a confusion with the similar operating under the name “N D T2″ is due. The effect of a indiziellen effect of the entry, that the defendant had caused him so, therefore can not be considered for this case.

However, the defendant in any event liable for infringement of a competitive transport duty for the defective items. It is not disputed her was because of the complaint by the Department beginning 2013 known, that are connected to them were faulty entries in directories and a violation of § 49 Abs. 4 S. 5 Passenger Transport Act constituted. Then it corresponded but the commandment professional care (§ 3 Abs. 2 S. 1 UWG), to ensure, that the entries were corrected. It can be left open, whether the defendant has made credible, that they are at 1. 4. 2013 has contacted the publisher. The basis of evidence from the applicant E-mail the publisher is established, that the correction in February 2014 is carried out, possibly only because of a facsimile letter from the Agent of the defendant from 1. 4. 2014. If the defendant made a compulsory, to correct the switched on their behalf erroneous entry, then she was obliged, to monitor compliance with their instructions. This is especially true reason, because her from the content of the fax submitted by it 1. 4. 2013 was known, that the unchanged entries considerable disadvantages, up to the court claims by competitors, could entail. This obligation, the defendant was aware, as is clear from the statement of its representative at the hearing before the District Court “We have always nachgeguckt and corrected” results. If there are illegal entries – as it is not in dispute here – could remain in public directories one year, the defendant responsible for this.

2. With true reasons, the district court it is assumed, that advertising on the premises of the defendant also a violation of § 49 Abs. 4 S. 5 Represents Passenger Transport Act. The mere fact, that the term “Taxi” is provided with question mark, does not rule out the misunderstanding of a significant part of the relevant public, that the defendant offers taxi services. It may be, that the defendant has meant so advertising, that they just wanted to ask for a comparison between the prices for a taxi and the cost. The placard Note “? Taxi ?” but can also be understood, that the defendant so that addresses the needs of, are seeking a taxi and understand them, that it offers both taxis and car hire.

3. The costs are based on § § 91 Abs. 1, 269 Abs. 3 ZPO. § 92 Abs. 2 No.. 1 Code of Civil Procedure does not apply, as originally alleged More demand (ten instead of eight complaints) has triggered a price jump.

The decision is final with their promulgation, § 542 Abs. 2 ZPO.

4. The amount in dispute was for the appeal process and the method of First Instance, in dismissing the complaint further the applicant (6 The 166/14) onto 30.000 EUR fixed. According to §§ 51 Abs. 2 and 4 MPD, 3 Code of Civil Procedure is to determine the object value for the method in its reasonable discretion. Whichever is the interest of the claimant, the prevention of future acts of infringement. The scope of interest related to the hazard of the action to be prohibited, therefore the probability and extent of a future that interest being undermined from, where at the request of an association for the promotion of commercial interests, the interests of the association is to evaluate a rule as well as the weight of a competitor (Köhler, in Köhler / Bornkamm, UWG, 32. Divide. 2014, § 12 Rn. 5.5, 5.8 m. in. N.). Although dispute information in the application for this indizielle have significance for the relevant interest of the claimant. The court shall not accept at face value but, but has independently verify the amount in dispute on the basis of objective facts, and drawing upon his experience and common value determinations in identical or similar cases fully (KG, NJOZ 2010, 2020, 2021; Köhler, in: Köhler / Bornkamm, UWG, 32. Divide. 2014, § 12 Rn. 5.4).

The Senate has between comparable violations of the Passenger Transport Act values 3.000 and 6.000 EUR accepted (Accel. in. 14. 1. 2013 – 6 The 6/13 and 6 The 15/13), where there was not very extensive, the operation of the defendant, as in the present case. Although in principle the violations should be evaluated by the entries in the telephone directories as serious, Because these entries a longer range than the window advertising on the premises of the defendant. On the other hand, should also be taken, that the applicant has objected to a total of eight entries in telephone directories, which are ultimately the result due to a single act of the defendant and have a comparable target direction. As a result, it therefore seems appropriate here, each alleged violation with 3.000 To evaluate EUR, leading to a dispute of total 30.000 EUR (eight directory entries, Promotional activities at two plants) leads.

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