The requirement of § 5a Abs. 3 No.. 2 UWG, specify the identity and address of operator, In the entry, the business operated by the branch addresses is not enough. Nach § 5a Abs. 3 No.. 2 UWG must be given "the identity and address of the business". Art. 7 IV lit. b UCP Directive speaks of the "address and the identity of the trader". These rules are intended to ensure, that the consumer is clear and unambiguous information about the underlying, with whom he comes into contact business, so that he can take contact without difficulty and without further investigation effort by providing companies (vgl. OLG, WRP 2011, 1213, 1214, OLG Dusseldorf, Urt. in. 02.10.2012 – The U-20 223/11 Tz. 23, LG Dortmund, Urt. in. 01.02.2012 – 10 The 92/11 confirmed by OLG Hamm, Urt. in. 30.10.2012 – I-4 U 61/12, Köhler / Bornkamm, a.a.O. § 5a Rn. 33). § 5a Abs. 3 No.. 2 UWG generalizes the basic idea, that the competition performance may not be anonymous and not without giving specific address (vgl. BT-pressure. 16/10145 S. 26). Special forms can be found, for example, the distance in § 312c. 1 BGB i. In. m. Art. 246 § 1 Abs. 1 No.. 1 to 3 BGB (Piper / Ohly / Sosnitza, UWG, 5. Edition 2010, § 5a Rn. 27). The idea is, that will enable consumers not only the completion of the intended purchase, but that is to be given him the opportunity, in case of dispute without further investigation effort his opponents and the process by location, Postal and street address achievable, to optionally may be a delivery of correspondence, out (OLG Hamm, Urt. in. 30.10.2012 – I-4 U 61/12 Tz. 70,). These requirements are not fulfilled by the defendant is sufficient to give the addresses of their branches in the disputed advertising brochures. Rather, it is – which the district court has gone contrary to the opinion of the parties even on the assumption of correct facts – required by operation of law, their domestic business address i. S. d. § 8 Abs. 4 No.. 1 Specify Limited Liability Companies Act, because only so the information needs of the consumer sufficiently take account (vgl. OLG Brandenburg, Urt. in. 26.06.2012 – 6 The 72/12)

OLG Saarbrücken by 6.3.2013, 1 You 41/12 – Corporate information on advertising brochures

The requirement of § 5a Abs. 3 No.. 2 UWG, specify the identity and address of operator, In the entry, the business operated by the branch addresses is not enough.

Tenor

I. The defendants' appeal against the 11.01.2012 announced, by resolution of 24.02.2012 corrected judgment of the District Court of Saarbruecken – 7 The 136/11 – is rejected.

II. The defendant to pay the costs of the appeal.

III. This judgment and the judgment is provisionally enforceable without security.

IV. The revision is not approved.

Reasons

A.

The plaintiff is a registered charity, to its statutory duties to safeguard the commercial interests of its members, includes in particular the respect it, that the rules of fair competition are respected.

The defendant is the owner of several furniture stores in southwest Germany. In June 2011 They campaigned by color brochure (Anlage K2, Bl. 18 ff.) specifying the address and telephone number of its branches for the range of goods offered there. Lacked an indication of the name and business address of the defendant. This brochure was accompanied by a depositor (Anlage K1, Bl. 11 ff.), was advertised in the "Great Action sale" for a. In the depositors neither branch addresses were, even the name or business address of the defendant named.

According to the applicant, this constitutes a breach of competition. For, according to § § 3 Abs. 2, 5a Abs. 2, Abs. 3 No.. 2 UWG requires the defendant, their identity and address – and not only the identity and address of its branches – sufficiently clearly specify the joint distribution of brochures.

He has therefore the defendant by letter dated 08.07.2011 (Bl. 31 f.) invited to submit an imitator, but this was unsuccessful. By letter of 11.08.2011 (Bl. 1 ff.) he filed suit in district court Saarbrücken. The defendant opposed the application (Bl. 61 ff.).

By the judgment under appeal (Bl. 133a ff.), on the factual and legal findings in full accordance with § 540 Abs. 1 Sentence 1 No.. 1 Code of Civil Procedure reference, the district court sentenced the defendant applicant in accordance with, to refrain, To advertise in trade compared to the final consumer, without specifying the address of the business, when this happens, as in commercials in Appendix K1 and K2. In addition, the defendants were any warning of the plaintiff in the amount of 166,60 Imposed euros plus interest.

In support of the district court stated, in substance,: The defendant is to act within § 5a Abs. 2 UWG unfair and therefore in accordance with § 3 UWG anticompetitive, because its obligation – aus § 5a Abs. 2, Abs. 3 No.. 2 UWG following – essential information obligation breached. This obligation exists, because the consumer "essentialia negotii" will be announced in the form of the advertised product and sales price with the advertising brochures. The injury lies in the fact, that they had failed, specify its business address in the advertising brochure. This information is required, because the meaning and purpose of § 5a Abs. 3 No.. 2 UWG, prevent, that the consumer must determine the exact identity and address of his contractor only in the event of a dispute. This is despite the well-known company "M." nothing.

Her appointment (Bl. 163 ff.) pursuing its motion to dismiss, the defendant further. The District Court considered, in its judgment of an incorrect facts, by ausführe, the defendant had the addresses of their branches not specified in the prospectuses. In addition, the judgment could not be found, that refer to the injunction the plaintiff only isolated and alone on a joint distribution of brochures and not on the distribution of brochures. It also requires § 5a Abs. 3 No.. 2 UWG does not, specify the place of establishment of. Rather, it must – if only for the possibility of substitute service pursuant to § 178 Code of Civil Procedure and the meaning and purpose of § 5a Abs. 3 No.. 2 UWG – be enough, if the addresses of the stores were given. For the other arguments advanced by the defendant is referred to the arguments in the first instance.

The defendant claims (GA 163, 283),

using a modification of the judgment of the District Court of Saarbruecken 11.01.2012 – 7 The 136/11 – dismiss the action.

The applicant claims (GA 207, 284),

dismissed the defendant's appeal.

He defends the judgment under revision and consolidation of his previous arguments. Its cross-appeal, merely seeks the reasons for the correction of the judgment, he has withdrawn at the hearing.

Because of the property- and the dispute, moreover, is between the parties to prepare for the hearing on appeal memoranda with attachments as well as the meeting minutes from the 27.02.2013 (GA 283 f.) Referring.

B.

The defendants' appeal is pursuant to § § 511, 513, 517, 519 and 520 ZPO statthaft sowie form- been and timely filed and justified, therefore allowed.

However, in the case it does not succeed, because the contested decision is not based on a causal violation of law within the meaning of § 546 Code of Civil Procedure nor warrant under § 529 Code of Civil Procedure is to be based facts a different decision (§ 513 ZPO).

Because the district court is fully entitled to it, that the plaintiff in a § § 8 Abs. 1, Abs. 3, 3, 5a Abs. 2, Abs. 3 No.. 2 Entitled UWG following claim against the defendant, is directed to the, to refrain, To advertise in trade compared to the final consumer, without specifying the address of the business, when this happens, as in commercials in Appendix K1 and K2.

1. The right of the plaintiff to assert the claim follows from § § 8 Abs. 3 No.. 2 UWG, 2, 3 Abs. 1 No.. 2 UKlaG (vgl. BGH GRUR 1998 502, 503 – Exchange Law I, BGH GRUR 2007, 809, 810 – Hospital Advertising). In contrast, the appeal has also remembers nothing.

2. The defendant has made an unfair commercial practice with the offending product advertising and thus committed a breach of competition, § 3 UWG.

a) The dispute leaflets (Systems K1 and K2) commercial acts are i. S. d. § 2 Abs. 1 No.. 1 UWG, since they are directed to, to promote the product sales of the defendant (Köhler / Bornkamm, UWG, 31. Edition 2013, § 2 Rn. 15).

b) Nach § 5a Abs. 2 UWG is unfair, who influences the decision-making ability of consumers by, that he withholds essential information. Nach § 5a Abs. 3 No.. 2 UWG, type. 7 Abs. 4 lit. b of Directive 2005/29 EC Unfair Commercial Practices (below: UGP-RL) converts, such information is essential to the identity and address of operator, provided it is in the corporate action in question for a quote, the basis of which an average consumer can close the deal, and provided that yield the identity and address is not apparent from the context. The resulting information requirements of this provision violated the defendant.

aa) § 5a of the Abs. 3 No.. 2 UWG following compulsory, educate the consumer about the identity and address of operator, formed according to § 5a Abs. 3 UWG then, when "goods or services offered Recalling its features and price in a manner appropriate to the means of communication used to [will], that an average consumer can close the deal ". Required is not a binding offer i. S. d. §§ 145 ff. BGB, another invitatio ad referendum (Köhler / Bornkamm, a.a.O. § 5a Rn. 30a). Rather, it is sufficient to directive-compliant interpretation of the standard of the kind. 7 IV, 2 lit. i UCP from, if the commercial practice in question is designed to, that the consumer is adequately informed of the advertised product and its price, to be able to make a business decision (EuGH GRUR 2011, 930 Tz. 33 – Consumer Ombudsman / Ving Sweden, OLG, WRP 2011, 1213, 1214). Sufficient is a reference to the item in word or image (ECJ, a.a.O. Tz. 49, OLG Dusseldorf, Urt. in. 02.10.2012 – The U-20 223/11 Tz. 22). An immediate purchase opportunity on the other hand does not exist (EuGH a.a.O. Tz. 33, OLG Hamm, Urt. in. 30.10.2012 – I-4 U 61/12 Tz. 64, Köhler / Bornkamm, a.a.O. § 5a Rn. 30b).

Of these standards, the district court is also expected. It has found any error of law, that in the advertising brochures (Systems K1 and K2) both the products advertised, as will be shown sufficiently clearly and precisely their price, so that the consumer is able, to be able to make an informed picture of the products of the defendant and their pricing is readily and possibly to take a decision to buy, this may also be negative. On the possibility of acquiring telephone, on indicating the district court, it is so far not, since there is already sufficient, that the consumer can make a business decision based on the advertising brochures.

bb) With such offers must according to § 5a Abs. 3 No.. 2 UWG the identity and address of the operator are given, provided they do not result from the circumstances. This commandment, the defendant violated, since they only address their branches, not their business address as is specified in the disputed advertising brochures.

(1) Nach § 5a Abs. 3 No.. 2 UWG must be given "the identity and address of the business". Art. 7 IV lit. b UCP Directive speaks of the "address and the identity of the trader". These rules are intended to ensure, that the consumer is clear and unambiguous information about the underlying, with whom he comes into contact business, so that he can take contact without difficulty and without further investigation effort by providing companies (vgl. OLG, WRP 2011, 1213, 1214, OLG Dusseldorf, Urt. in. 02.10.2012 – The U-20 223/11 Tz. 23, LG Dortmund, Urt. in. 01.02.2012 – 10 The 92/11 confirmed by OLG Hamm, Urt. in. 30.10.2012 – I-4 U 61/12, Köhler / Bornkamm, a.a.O. § 5a Rn. 33). § 5a Abs. 3 No.. 2 UWG generalizes the basic idea, that the competition performance may not be anonymous and not without giving specific address (vgl. BT-pressure. 16/10145 S. 26). Special forms can be found, for example, the distance in § 312c. 1 BGB i. In. m. Art. 246 § 1 Abs. 1 No.. 1 to 3 BGB (Piper / Ohly / Sosnitza, UWG, 5. Edition 2010, § 5a Rn. 27). The idea is, that will enable consumers not only the completion of the intended purchase, but that is to be given him the opportunity, in case of dispute without further investigation effort his opponents and the process by location, Postal and street address achievable, to optionally may be a delivery of correspondence, out (OLG Hamm, Urt. in. 30.10.2012 – I-4 U 61/12 Tz. 70,). These requirements are not fulfilled by the defendant is sufficient to give the addresses of their branches in the disputed advertising brochures. Rather, it is – which the district court has gone contrary to the opinion of the parties even on the assumption of correct facts – required by operation of law, their domestic business address i. S. d. § 8 Abs. 4 No.. 1 Specify Limited Liability Companies Act, because only so the information needs of the consumer sufficiently take account (vgl. OLG Brandenburg, Urt. in. 26.06.2012 – 6 The 72/12).

(2) While calls § 5a Abs. 3 No.. 2 UWG its wording, not a "summons" Address such as § 312c BGB i. In. m. Art. 246 § 1 Abs. 1 No.. 3 BGB. However, it is already, dass § 5a Abs. 3 No.. 2 UWG beside still requires the specification of the "identity" of the entrepreneur, that details of the bare branch address may not be enough. Because – as the OLG Dusseldorf (Judgment of 02.10.2012 – The U-20 223/11 Tz. 23) rightly – a branch has already conceptually no "identity", Rather, it is the only legal entity to. This was not stated in the disputed advertising brochures.

(3) The argument of the appeal, an indication of the Branch Address rich because of the possibility of service given at the location of the branch, for example, by way of substituted service (§ 178 ZPO) from, can not accede to the Senate. As the district court rightly says, the consumer can not be referenced. For purpose of § 5a Abs. 3 No.. 2 UWG is not, to inform the consumer about the location of the outlet in knowledge – here about the entrepreneur already informed interest in its own paragraph -, but to convey basic information about its contract partners, enabling it, this uniquely identify. It occurs that is not just with the stores themselves, but with the right support to business contact. A contrary interpretation of § 5a Abs. 3 No.. 2 UWG, which can be sufficient to specify the branch address, is contrary to the stated goal of the UCP, contribute to the achievement of a high level of consumer protection (Art. 1 UGP-RL), and should therefore be rejected.

(4) Failure is therefore also the objection of the defendant, relying on a decision of the Court Potsdam (LG Potsdam, Accel. in. 15.02.2012 – 52 The 15/12) cites, the possibility of legal action at the site of branch (§ 21 ZPO) talking about this, sufficient to allow the specification of the branch address. Such as the Brandenburg Higher Regional Court in its decision, with which it annulled the decision of the Court Potsdam (OLG Brandenburg, Urt. in. 12.04.2012 – 6 The 72/12), correctly observed, § justified 21 Code of Civil Procedure only the jurisdiction, actions can be brought against the defendant in the, does not regulate, that service and charges may be made to the defendant under this postal address. In that regard, § 21 ZPO, the consumer simply an additional way, bring an action at the store. In contrast, the consumer's rights, Defendant may optionally take advantage of, sufficiently secured only by specifying their exact name and its registered office.

(5) Contrary to what the defendant did not provide the information directly from the circumstances. In particular, the specification is a nationally known business name – here M. – unsatisfactory, since the group name is not suitable as such, to indicate the identity of the respective branch operated subsidiary.

cc) As the district court correctly stated, follows from the breach of an essential duty to inform according to § 5a Abs. 3 No.. 2 UWG the business relevance of the offense (BGH GRUR 2010, 852 Tz. 21 – Gallardo Spyder, BGH GRUR 2010, 1142 Tz. 24 – Wooden stool). A different result arises not – as the appeal says – from the decision of the Court of 15.03.2012 – C-453/10 (EuGH GRUR 2012, 639 – Pereničová in. Perenič / SOS). Because this decision was to sort. 6 Abs. 1 UGP-RL, the union of the legal basis of § 5 Abs. 1 UWG is, and not too kind. 7 IV UGP-RL, by the German legislature in § 5a Abs. 3 UWG has been implemented.

3. Required for the injunctive risk of repetition is indicated by the first ascent. In particular, the defendant has refused, to issue a penalty clause statement, which would have led to the elimination of the risk of repetition (vgl. BGH GRUR 1996, 290 – Eliminating the risk of repetition I).

4. Concerns not stand against the determination of the claim for injunctive relief. Under the operative part of the contested decision, the defendant is sentenced, to refrain, To advertise in trade compared to the final consumer, without specifying the address of the business, when this happens, as in commercials in Appendix K1 and K2 system. By referring to the two plants, which have been distributed together by the undisputed facts, the K1 system was attached to the actual color prospectus K2 as depositors, results already, it's all about the joint distribution of the two leaflets conditioning system K1 and K2 according to the tenor of the judgment.

The costs follows from § § 97 Abs. 1, 516 Abs. 2, 92 Abs. 2 No.. 1 ZPO, because the redeemed-appeal has not arranged for special costs. The decision on the provisional enforceability is based on § § 708 No.. 10, 713 ZPO, 26 No.. 8 EGZPO.

The revision was not to allow, because it lacks the necessary conditions (§§ 542 Abs. 1, 543 Abs. 1 Section 1 i. In. m. Abs. 2 Sentence 1 ZPO).

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