The inter alia for the Competition Law responsible I. Civil Division of the Federal Court held today, that a press undertaking one of a company paid editorial article in a newspaper clearly with the term “Display” mark must.
The applicant is the “Stuttgart weekly” out. The defendant is a publisher of free advertising circular “GOOD NEWS”. She has published in the June issue 2009 two contributions, for which they had received from sponsors for a fee. This had the defendant with the notice “sponsored by” made and graphically highlighted indication of the advertising company indicated.
The applicant considers, dieses Verhalten verstoĂe gegen Â§ 4 No.. 11 UWG in conjunction with Â§ 10 Landespressegesetz Baden-WĂŒrttemberg (LPresseG BW)*, because the publications were not sufficiently labeled as an advertisement. It has therefore taken the defendant to cease and desist.
The district court ordered the defendant in the terms sought. The appeal is directed against them remained without success. The Bundesgerichtshof has referred the matter to the Court of Justice of the European Union, ob die Vorschrift des Â§ 10 LPresseG BW, which also serves to protect the independence of the press in addition to the protection of consumers and to some extent more stringent requirements on the identification of editorial advertising as Directive 2005/29/EC on Unfair Commercial Practices, is consistent with this Directive. The Court of Justice of the European Union has decided this, that is not open for the present case the constellation of the scope of the Directive on Unfair Commercial Practices.
The Federal Court dismissed the appeal by the Respondent, confirming the pronounced by the courts ban. According to the findings of the court the defendant had received a fee for the publication of the two editorial put up posts. Â§ 10 LPresseG BW does not require, that the fee has been paid for a specific content of the publication or for a pre-established products. It just depends on, that the publisher of a periodical work has received remuneration for a publication.
The strict order of the identification of advertisements is violated, when the precise concept of “Display” is avoided and instead opted for a fuzzy concept. The identification of the posts with the words “sponsored by” therefore not enough to clarify the nature of the display publications.
Judgment of 6. February 2014 Â I ZR 2/11 Â GOOD NEWS II
LG Stuttgart – Judgment of 27. More 2010 Â 35 The 80/09 KfH
OLG Stuttgart – Judgment of 15. December 2010 Â 4 You 112/10
BGH, Decision of 19. July 2012 Â I ZR 2/11, Wheat 2012, 1056 = WRP 2012, 1219 Â GOOD NEWS I
ECJ, Judgment of 17. October 2013 Â CÂ391/12, Wheat 2013, 1245 = WRP 2013, 1575
* Â§ 10 LPresseG BW lautet:
If the publisher of a periodical work or the person responsible (Â§ 8 Abs. 2 Sentence 4) receive a fee for publication, required or can promise, he has this publication, insofar as it is not generally seen as already indicated by arrangement and design, clearly with the word “Display” to designate.