KG Berlin 5. Civil Division 5 You 19/12 from 12.10.2012 – Ginger Beer
Basic principle
- 1. The term “Ginger Beer” for a drink, contains no beer, can be misleading, and because the extent of the domestic average consumer as a reference beer(ingredients) is understood.
2. To competitors, under competition law that can make a claim for injunctive relief against the user of such a designation claims, including breweries and beer distributors (Mark on any stage).
Tenor
- 1. The appeal of the respondent against the judgment of the Commercial Court 103 the District Court of Berlin 8. November 2011 (corrected version in accordance with the resolution of 11. January 2012) – 103 The 77/11 – is rejected.
- 2. The defendant shall bear the costs of second instance.
Reasons
- A.
- B.
- 2
- The appeal of the defendant is admissible and form- and timely filed and otherwise admissible, has in the matter but to no avail. By law, the district court as to the applicant in accordance with § 8 Abs. 3 No.. 2 UWG considered qualified by process, one available in accordance with § 12 Abs. 2 UWG affirmative and available claim under § 8 Abs. 1, § 3 Abs. 1, Abs. 2 UWG accepted. The Senate votes on the reasons for the decision in the judgment is essentially, points out and adds it in respect of its appeal, only the following:
- I.
- 3
- By law, the district court adopted, that the applicant I.s one. by § 8 Abs. 3 No.. 2 UWG significant number of entrepreneurs belonging, the same or similar type of goods in the same market sell.
- 1.
- 4
- The term of the same or similar type of goods is to be interpreted broadly. The reciprocal trade must have its way after so identical or closely, that the sales of one can be affected by any anti-competitive actions of other. Required is the existence of a competitive relationship abstract. This, it is sufficient, that a not entirely insignificant (potential) Interference with a certain, albeit low probability can be considered (BGH 2006, 778, Tz. 19 – Collective Membership IV).
- 2.
- 5
- THEREFORE the relevant goods in dispute include beers. Because is accused of suggesting the beer for a non-beer. Whether the accusation is justified or not, is matter of substance. Authorized, the charge by way of § 8 Abs. 3 To raise UWG, but (also) the entrepreneur biervertreibende. Because the beer distributors are passed – if the allegation is true – to the detriment, if a prospective beer “Ginger Beer” acquires, because he thinks, if it were beer. Contrary to the appeal is therefore in situations of the kind at issue in the distribution of goods of the same or similar kind not only to the actual product sold by the attacked, off but also to the product suggested by the attacked. It is in other words (including) out of, on which products are the offending advertising measure relates (vgl. BGH 2006, 778 Tz. 19 a.E. – Collective Membership IV; BGH 2004, 877 – Ad Blocking; BGH 1972, 553 – Instead of flowers ONKO coffee).
- 3.
- 6
- The parties must – contrary to the Appellate – Also not on the same economic- or level of trade are (vgl. BGH 1998, 489, 491 – Indefinite injunctive relief III). For in each of these stages earned a business, whether he is (for example) Manufacturer, Wholesaler, Retailers or – here as well – Restaurateur, ultimately it, ask that the final consumer, the product. It does not matter, if the defendant – as it claims – only intermediates or supplies. to deliver electricity. The example assumes a dealer, the beer products sold to consumers, not from among their competitors out.
- 4.
- 7
- It follows from all the foregoing, for example, breweries, when the applicant (directly or indirectly,) Member are, for the assessment of § 8 Abs. 3 No.. 2 UWG relevant sind.
- 5.
- 8
- “Substantially” i.S. by § 8 Abs. III NR. 2 UWG is the number of members of the association in the market for then, if these members as entrepreneurs, based on the relevant market, in such a way are representative, that any abuse of the association can be excluded. This may be to accept already active in a small number of members of the relevant market. Thereon, whether this association representative members according to their number and their economic weight in relation to all other operators in the market are entrepreneurs, it matters not (BGH 2007, 809, Tz. 15 – Hospital Advertising). Judging by the above, is in dispute said “Relevance” (already) overlooking the (direct or indirect) Members of the applicant, I u.a. R., The M., the r ... and the 60 Bavarian breweries, to accept readily.
- II.
- 9
- Likewise with law, the district court adopted, that the applicant for its personnel, material and financial resources capable of, its statutory responsibilities of the prosecution of commercial or independent professional interests perceive actually. In a properly established and actively operating an actual presumption Association speaks for the actual purpose of tracking, the opponent has refuted (BGH 2000, 1093, 1095 – Association). For a many years recognized as legal standing association (as the applicant) sufficient regard to the actual purpose of prosecution therefore not a mere denial, To suggest there is, that this condition is more (OLG Stuttgart GRUR-RR 2009, 343, 344). If an attacker has been granted on this basis in the past, the actual assumption of the existence of its litigation authority, so also the special audit dispensable, Unless – as not – Presented evidence of a contrary assumption or visible (vgl. also BGH 2000, 1093, 1095 – Association). That the applicant has always (including also the superior court) affirmed (sufficient financial resources and) actual, statutory activity leads THEREFORE in dispute also illustrated above for continuity assumption, which is refuted here by the attacked, what has not happened.
- III.
- 10
- (In any case, the result) N is also the judgment of the District Court, that the representation used by the defendant to the specific products at issue as “Ginger Beer” in accordance with § 3 Abs. 1, Abs. 2 UWG is inadmissible and that THEREFORE an injunction from the applicant § 8 Abs. 1 Sentence 1 UWG triggers. Because it is so far an unfair, namely (anyhow) deceptive act I.s. by § 5 Abs. 1 Sentence 1, Sentence 2 No.. 1 UWG. Assuming the applicant, that said representation of domestic average consumer as an indication of beer(ingredients) is understood, is – at least in summary proceedings with all probability – agree. The Glaubhaftmachungslast in this case is the defendant, as the misdirection of the word's meaning (Beer = Beer) follows and the defendant is, which refers to a different understanding of it. Such a presumption is not done. (Also) that the public is associated members of the Senate would have recognized the product in question – in the absence of knowledge of the dispute – classified on the basis of the challenged representation as a beer-based drink.
- C.