The specification of a premium rate service numbers in the imprint of a message the media service provider is anti-competitive.
LG Frankfurt 3. Civil Appeal from the 02.10.2013 to 2-03 The 445/12, 2/03 The 445/12, 2-3 The 445/12, 2/3 The 445/12
Art 5 Abs 1 Buchst c EGRL 31/2001, § 66d TKG, § 5 Abs 1 No. 2 TMG, § 4 No. 11 UWG
…
Tenor
The defendant is sentenced, to it, on pain of a threatened for each violation fine of up to 250.000,00 €, alternatively, order custody, or imprisonment up to six months, to execute each of its board, to refrain,
to refer in the business for purposes of competition under the provider identification on a chargeable value-added services number, When this happens, as shown in the attached installation.
Moreover, the application is dismissed.
Of the costs of the proceedings the applicant have 20 % and the defendant 80 % to wear.
The judgment is provisionally enforceable, However, for the applicant only against security in the amount of 8.800,00 €. The applicant can enforcement against security in the amount of 110 % the turn after the judgment enforceable amount, unless the defendant prior to the enforcement of security in the amount 110 % of each case to be enforced amount does.
Facts
1
The parties are competitors.
2
The applicant operates an Internet mail order company and sells different products, including bicycle trailer.
3
The defendant provides under the domains … and … u.a. Bike trailers for sale.
4
Under the last-mentioned Internet address, the defendant is under the imprint name, Legal form, Address and legal guardians to. The phone number, is a fee-based value-added services number, in the cost of up to 2,99 € / minute apply, given. In the section “Contact” Please refer firstly to an email address and secondly on a chargeable value-added services number (Exhibit K 1 = With. 21 ff. d.A.). A contact form is not stored, Instead, a link is made to the user's email program.
5
By order of 19.09.2012 the Board has (The.: 2-03 The 380/12) an interlocutory injunction, with which the defendant was prohibited under reporting of law and order means,
6
to refer in the business for purposes of the competition under the provider identification in addition to the specification of the e-mail address only to a chargeable value-added services number, if this occurs as in the Appendix to this decision [corresponding page 2, 3 der Anlage K 1 = With. 22 f. d.A.] apparent.
7
By order of 02.10.2012 the applicant was abandoned, To raise his main claim.
8
The applicant considers, the Beklagte verstoße gegen § 5 Abs. 1 No.. 2 TMG. The submission of further information corresponds to any event, if it is present as a charge, not meet the needs or legitimate expectations of the user, so that there was no effective communication. This was particularly true, if the user does not have access to the electronic network. The indication of contact should the consumers at all times a quick, allow unproblematic access to more information, however, not be an additional source of revenue for the service provider. The burden of additional costs consider potential users of a contact from, what would accentuated by the prominence of the duty to pay.
9
The defendant was therefore to refrain, required to supply information and to pay damages.
10
The applicant claims,
11
1. to condemn the defendant, it bet avoidance of a threatened for each violation fine of up to 250.000,00 €, alternatively, order custody, or imprisonment up to six months, to execute each of its board, to refrain,
12
to refer in the business for purposes of competition under the provider identification on a chargeable value-added services number, When this happens, as shown in the attached installation,
13
2. order the defendant, about the scope of the above in accordance with Paragraph 1. to issue acts complained of information, in particular, indicating the appearance times and duration of the acts complained of and the number of page views,
14
3. determine, that the defendant has committed, to compensate the applicant for the damages, upon it by the above paragraph to 1. actions referred to arose and is still continue to emerge.
15
The defendant claims,
16
dismiss the action.
17
The defendant is of the opinion, there is no obligation, provide a telephone number in their provider identification, only law specifying a value-added service number is not prohibited.
18
The feature of allowing an efficient communication should be determined solely according to temporal aspects.
19
The cost of value-added services number constitutes an adequate return for the legally non-mandatory way of a telephone contact with the defendant is. The possibility offered by the defendant of a telephone contact, via the established their value-added services number put an equally effective means of communication is as the possibility of contact by email. The reference to the cost of serving the transparency.
20
Only after a contract has already been concluded, was not a chargeable value-added services number allowed, as is apparent from Article. 21 RL 2011/83 / EU follows.
21
In addition, the right to information is already therefore may not be, because let be calculated from the required information no damage. It will, therefore, the plea of estoppel applicable. The same applies to the claim for damages.
22
The record of the preliminary injunction proceedings before the Board, The.: 2-03 The 380/12, has been called in and was the subject of the hearing.
23
For further details reference is additionally referred to the correspondence between the parties pleadings and the annexes and the Beiakte.
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Reasons
24
The action is partly due.
25
The applicant shall have against the defendant with the application 1. asserted claim to enjoin use of a premium rate number services within the Provider identification according to the §§ 3, 4 No.. 11, 8 UWG, 5 Abs. 1 No.. 2 TMG to.
26
The provision of § 5 Abs. 1 No.. 2 TMG, Art. 5 Abs. 1 c) the RL converts 2001/31 / EC, commands the service provider, To provide information, which allow rapid electronic contact and a direct and effective communication.
27
The Court of Justice of the European Union has so far performed, that the service provider must, In addition to his electronic mail address (Email-Adresse) to provide further information to. This would not necessarily include a phone number. You could also concern about the inquiry template, over which the user could contact the service provider (vgl. ECJ, NJW 2008, 3553, juris-rn. 32, 40). The immediacy criterion means, that no third party could be switched between the parties (vgl. ECJ, NJW 2008, 3553, juris-rn. 29); communication is efficiently, if they ertaube it, that the users receive adequate information within, which is compatible with the needs or legitimate expectations (vgl. ECJ, NJW 2008, 3553, juris-rn. 30).
28
The Board considers, that the establishment of a telephone number as a value-added service number does not allow direct and efficient communication between users and service providers, especially the case, when, as here cost in the range of just permissible maximum prices according to § 66d TKG – here up to 2,99 €/Minute – accrue (s. also Micklitz / Schirmbacher in: Spindler / Schuster, Law of electronic media, 2. Ed, § 5 TMG Rn. 47).
29
If the telephone number set up as a value-added service number, by the usual cost overruns, can prevent them from contacting due to the associated costs this user (vgl. BGH, Wheat 2007, 723 – Internet-insurance, juris-rn. 15; s. also KG, MMR 2013, 591 – Online Contact Form, juris-rn. 48 assessment of the equivalence of an email address and a fax number).
30
This contradicts the objectives of Directive 2001/31 / EC. This is aiming to contribute to the acceptance of new information- afford and communication technologies in everyday commerce laws, (vgl. Recitals 4 to 6, Art. 1 Abs. 1; s. also BT-Drs. 13/7385, S. 18). At the same time, the protection of consumers should be guaranteed (Recitals 7, 10, 11).
31
With this, it is not consistent, if the service provider from the contact achieved by means of pay service numbers additional profit, especially since the consumer no adequate consideration is given to (vgl. Micklitz / Schirmbacher, a.a.O. § 5 TMG Rn. 47).
32
Insofar as the defendant in this context refers, that the business model and the business structures of an online retailer provide for unlike the retail stores no consultative seller, what was in the context of the calculation of the prices impact, so that it was appropriate, To raise costs for answering telephone inquiries, can not be upheld her. Therefore relevant disadvantages in competition caused by the telephone counseling costs should not arise already, because at least in the Union, all competitors of the defendant to the extent subject to the same rules. Certain – of course not looking out of hand – Charges the defendant (as well as of each other addressees) must – Moreover, also in view of the way in. 12, 14 GG provided basic legal barriers – be accepted. Because of with § 5 Abs. 1 No.. 2 TMG related intervention is legitimized by the associated reasonable factual considerations of the common good (vgl. KG, MMR 2013, 591 – Online Contact Form, juris-rn. 52).
33
Likewise, the defendant can not be accepted in, that a strain of the caller is justified with corresponding costs therefore, as yet there is no contractual link. In that regard, the applicant refers rightly point out, that there is already a special connection with corresponding obligations (§ 311 Abs. 2 BGB). The already pre-contractual information provided by the service provider to enable the users of the service just, to assess the extent of its future commitment and thus avoid the risk of certain errors, which could lead to the conclusion of an unfavorable contract (vgl. ECJ, NJW 2008, 3553, juris-rn. 23).
34
The defendant is not also join in, that kind of. 21 RL 2011/83 / EU Folge, that the provision of premium rate services number is only not allowed, after a contract already had been concluded. Consumer protection is ensured at all stages of contact between the service provider and the users of the service (vgl. ECJ, NJW 2008, 3553, juris-rn. 22). Although there is no general prohibition on the provision of a value added service number for the stage before the contract is statuiert, this does not result in reverse to, that this is generally permitted, Zumal § 5 Abs. 1 No.. 2 TMG or. Art. 5 Abs. 1 c) of Directive 2001/31 / EC provide just no duty to give a telephone number.
35
Contrary to what the defendant has the ECJ (vgl. NJW 2008, 3553) also not ruled on the question of the admissibility of the use of a value-added service number and this particular does not even affirmative. The Supreme Court had also not submitted this question to Vorlabentscheidung. Rather, the Supreme Court had merely given the potential cost of a value added service numbers in the order in connection with the discussion of the equivalence of other channels of communication for a lack of superiority of establishing a telephone connection (vgl. BGH, Wheat 2007, 723 – Internet-insurance, juris-rn. 15).
36
The defendant can not be followed in, that the feature of allowing an efficient communication should be determined solely according to temporal aspects. Against this already speaks the text of the Directive, after which a quick contact and a direct and effective communication is to enable. Otherwise you would have instead of the word “efficient” and the term “quickly” can use. Although the ECJ has described the criterion of direct and effective communication in the sense of a sufficiently rapid communication without intermediaries (vgl. NJW 2008, 3553, Rn. 31), but this is against the background, that was to clarify here, whether the fact, that necessarily at a communications via a contact form the answer – unlike a telephone call – staggered (there 30 to 60 Minutes later) carried, proper provider identification precludes. A mere stopping on temporal aspects would otherwise mean about, that efficient, because timely communication would be present already in any telephone contact, even if the other party would be fobbed off on the supplier side caller by default with the answer, that telephone information can not be obtained. The decision of the ECJ is to be found rather, that the feature of efficiency is especially important to measure the needs and reasonable expectations of the consumer. But this is a possibility of contact, connected to telephone charges, exceeding the usual cost, just not fair.
37
In contrast, the applicant shall have no rights of access and compensation as applied to 2. and 3. to. This does not follow from the particular § 9 UWG, 242 BGB. Even after the experience of life can not be expected with some certainty, that the breach of competition to a – although probably difficult to quantify – Damage has resulted. The applicant refers in that respect it, that in the event of a protracted and intensive use of a masthead with a value-added service number significant competitive advantages – already connected to the device by the revenue – would result. Although a damage compensation through of the infringer is basically also a competition violation into consideration. Even with competitors related competition violations, however, is recognized, that there is no empirical proposition then, that the turnover of the infringer would have benefited the injured (vgl. OLG Hamburg, Magazin Service 2010, 55, juris-rn. 63; Köhler / Bornkamm, UWG, 31. Ed, § 9 Rn. 1.35, 1.45 f.). In that regard, there is a lack of sufficient presentation, that the violation has resulted in the applicant to damage.
38
The cost is based on § 92 Abs. 1 ZPO, the decision on the provisional enforceability on the §§ 708 No.. 11, 709, 711 ZPO.