Being angry with competitors is normal and understandable. What many do not realize is that a statement about a competitor can lead to competitive action and harm even if it is (normally permitted) expression of opinion.
Thus, in its extraordinary judgment of 16.04.2019, the High Regional Court in Frankfurt am Main, in a statement on Facebook containing "I hate this brand Klau" as anti-competitive and based on competition law, condemned the author for omitting and paying Abmahnkosten (OLG Frankfurt, Judgment v. 16.04.2019, Az. 16 In 148/18).
Controversy over trademark tags for permanent makeup services
Both sides offer cosmetics in the field of permanent makeup, including, among other things, so-called microblading. In the past, parties have applied for very similar words. Subsequently, the later defendant posted the following post on her Facebook page:
"What I hate about these markers.
My lawyer is busy again.
www. (…) .com / "
Thus, the Respondent was referring to the applicant's domain. After the post office, a letter from the prosecutor was posted, signs of her word-logo, as well as chat history regarding a private Facebook conversation with the prosecutor.
The plaintiff first asked the defendant by warning the attorney's letter to remove the statement and to restrain himself in the future. As the respondent did not send the requested waiver and quit, the suit went to court. In the conduct of the competitor, the plaintiff also saw a violation of his personal rights in the form of an untrue factual fact, as well as a reduction in competition law.
The district court denied the injunction. OLG Frankfurt appealed to the plaintiff in the Court of Appeal and sentenced the defendant to default and to pay the reprimand.
No false statement of fact – No more torts by order
The plaintiff stands against the defendant against a request to omit the word spread by Facebook, the Frankfurt High Court announced. The court initially rejected the claim for interim relief as set out in §§ 1004 (1) analog BGB, 823 paragraph 1 BGB i. V. m. Article 1 (1), Article 2 (1) of the General General of the applicant's personal rights, because the impugned statement "What I hate about this hacking hacker" is not a statement of fact, but rather an expression of boundary mark that did not exceed the illicit criticisms of abuse. In this connection, the statement is covered by the constitutionally protected freedom of expression.
The term "claw marks" is an everyday linguistic assessment of the legal constellation. Moreover, the assessment of the trademark dispute requires a comprehensive legal assessment and "in most cases depends – not only on the simple facts, the evidence available". Therefore, no legal assessment can be made from that statement. Since this is a dispute between the two artists dealing with the microblades in question, there is no abuse of criticism.
Competition Complaint Statement
However, the court did see a claim for temporary relief to the plaintiff for the competition violation of § 8 i. V. m. § 4 no. 1 UWG as day. The parties are competitors i. P. D. § 2 Abs. 1 pc. 3 UWG because they offer similar services and have been warned many times in the past.
In the Senate's view, the post was a derogatory term. P. D. § 4 no. 1 UWG and is therefore anti-competitive. The General Court assesses whether there is an anti-competitive reduction by providing a comprehensive assessment of the circumstances of the case. Particular consideration should be given to the content and format of the statement, the occasion and context in which the statement was made, and the ability to understand the traffic in question. In the case of traffic, it is a re-representation of the average informed and communicative recipient.
"If a competitor is now accused of brand fraud, it indicates suspicious business conduct and could lead the interested public to distract from the competition accused of Brandklaus or even to distract, as far as training on applications or the applications themselves. "
The Court emphasizes that the average customer cannot recognize whether the allegation of a "trademark clause" is justified and whether there is a breach of trademark law. So, it doesn't matter if the post refers to the domain name or characters of their applicant word logo. On the contrary, it is crucial that the defendant seized the opportunity through her Facebook page to distance her visitors from the applicant as a competitor, using the words "I hate" and "Markenklau".
Watch out for statements that can be discredited on the Internet
As this case shows, the extent of the saying about competitors on social networks should not be underestimated. Therefore, they should always be exercised with particular care, especially if they are suitable for minimizing competitors. In order to avoid warnings and costly legal disputes with competitors, it is advisable not to clash with competitors on the Internet and seek legal advice if necessary.