An advertisement, which is linguistically marked by a consistent use of direct address in the second person singular and mostly children Conceptually typical speeds including common anglicisms, aimed specifically at first Li-never to children. With the meaning "Buy yourself ...” oder „Hol Dir …” to-understand wording "Grab the opportunity and miss your armor & Weapons that certain 'something'” are the matters raised by the advertising children within the meaning of the number 28 the Annex to § 3 Abs. 3 UWG immediately prompted, to acquire the be-acquired goods or services themselves. This does not conflict, that the prices and features of various products and services not on the home Internet page, containing the advertising message, are shown but only on the next linked by an electronic reference page.
BGH I ZR JUDGMENT BY DEFAULT 34/12 from 17. July 2013 – Runes of Magic
UWG Nr. 28 English. to § 3 Abs. 3
A) An advertisement, which is linguistically marked by a consistent use of direct-to language in the second person singular and mostly children Conceptually typical speeds including common anglicisms, aimed specifically at first Li-never to children.
B) With the meaning "Buy yourself ...” oder „Hol Dir …” to-understand wording "Grab the opportunity and miss your armor & Weapons that certain 'something'” are the matters raised by the advertising children within the meaning of the number 28 the Annex to § 3 Abs. 3 UWG immediately prompted, to acquire the be-acquired goods or services themselves. This does not conflict, that the prices and features of various products and services not on the home Internet page, containing the advertising message, are shown but only on the next linked by an electronic reference page.
BGH, Default judgment from 17. July 2013 – I ZR 34/12 – KG Berlin
LG Berlin
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The I. Civil Division of the Federal Court of the oral negotiation 17. July 2013 by the presiding judge Prof. Dr. Dr. h.c. Born-comb and the judges Pokrant, Prof.. Dr. Büscher, Dr. Koch and Dr. Loeffler
hereby:
On appeal by the claimant of the decision is the 24. Civil senate of the Supreme Court of 30. January 2012 canceled.
On appeal by the plaintiff, the judgment of the Civil Division 16 the District Court of Berlin 29. June 2010 amended.
The defendant is sentenced,
1. it under the threat of the court to be determined for each case of infringement administrative fine of up to 250.000 €, alternatively imprisonment up to six months, or-order way up to six months, the latter to carry out to the Board members, to refrain
as part of the online game "Runes of Magic” with the call notice "Grab the opportunity and miss your armor & Weapons that certain 'something'” to promote the fee-based purchase of game items or to have who-ben;
2. an den klager 100 To pay €.
The costs of the litigation, the defendant bears.
The judgment is provisionally enforceable.
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Facts:
The defendant offers on the Internet under the name "Runes of Magic” a fantasy RPG at. The time required for the game participation software is available for free downloading available. The equipment of the game characters can be extended by virtual objects, which may be pecuniary-ing bought and paid for, among other things by credit card on a credit basis or by SMS.
The defendant advertises on its website for the purchase of virtual objects, among others, the following statements:
Pimp your character Week (Heading)
Is your character equipped ready for future adventures and accordingly?
It wait thousands of dangers in the wide world of Taborea to you and your character. Without adequate preparation, the next corner to be the last step in the Dungeon.
This week you have another chance to tinker with your character!
Grab the opportunity and miss your armor & Weapons that certain 'something'!
From Monday, the 20. April 17:00 to Friday, the 24. April 17:00 hast du die Chance, Upgrade your character!
The underlined words "upgrade your character” are by an electronic reference (Link) connected to a website, on the defendant in detail shown "Accessories item” offers to purchase.
The plaintiff, the Federation of Consumer Organizations and consumer organizations, has criticized this as anti-competitive. As far as for the re-vision process still of importance, he sees this as a violation of number 28 the Annex to § 3 Abs. 3 UWG as well as against § 4 No.. 1 and 2 UWG.
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The applicant has requested,
order the defendant under pain of penalties from, to leave it under-, as part of the online game "Runes of Magic” with the request "Grab the opportunity and miss your armor & Weapons that certain 'something'” to have to advertise or promote the paid purchase in-game items.
Furthermore, the applicant has the reimbursement of warning costs in the amount of 100 Calls €.
The defendant is of the opinion, the advertisement does not contain direct call notice for the purchase of certain goods and speaking children do not explicitly.
The district court dismissed the action. Directed against the vocation, the Court of Appeal by a decision in accordance with § 522 Abs. 2 Sentence 1 Rejected ZPO. With the approved by the Senate revision of the plaintiff pursued his complaint further requests.
The duly summoned defendant was not represented in the date for the hearing before the Court of Appeals. The applicant claims, to decide on his appeal by judgment by default.
Reasons:
A. This Court has adopted, the appellant is the gel-tend-made injunctive relief neither from the standpoint of looking at children direct solicitation nor because of a competitive legally impermissible impairment of the freedom of choice of potential recruits to. To this end, it has performed:
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The advertising of the defendant merely contains an indirect, by number 28 the Annex to § 3 Abs. 3 UWG not factual even Kaufauf requirement. The impugned statement "Grab ...” also satisfied in conjunction with the product specifications, going on the referenced via a link, not meet the requirements of a direct exhortation to children to buy a promoted product. The need, to actuate the link, ste-he of the required product relatedness, despite the immediate connection in the text of the appeal "Grab ...” contrary to. This call was also not included in an advertisement. The fact that only the compliance of the appeal opens up access to the product advertising, not enough, especially since the rule does not intends to prohibit any advertising aimed at children and therefore can not be interpreted broadly.
The advertising of the defendant does not violate § 4 No.. 1 UWG. That will addressed with game participation of the playfulness of children, qualifying advertisement is not already irrelevant as inappropriate influence-send, even if they gave the impression, that the issue of an dash-tion equipment for the game either necessary or useful is.
B. The actions against these attacks assessment of the revision success. They lead to the annulment of the contested decision and to Ver-assessment of the defendant.
I. About the revision is in the terms sought by default judgment to decide, because the defendant was represented by counsel at the hearing does not appeal trial in spite of proper charge. Content is not based on the judgment of however of default of the defendant, but on a Sachprü-added (vgl. BGH, Judgment of 17. August 2011 – I ZR 134/10, Wheat 2012, 82 RN. 10 = WRP 2012, 198 – Order confirmation).
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II. The Court of Appeal has the application for an injunction wrongly completed reported. The alleged omission claim is based on § 8 Abs. 1 and 3 No.. 3, § 3 Abs. 3 in conjunction with number 28 the Annex to § 3 Abs. 3 UWG.
1. by number 28 the Annex to § 3 Abs. 3 UWG, the control number in the 28 of Annex I to Directive 2005/29/EC is reacting on unfair business practices and thus comply with the Directive must be interpreted (vgl. Köhler in Köhler / Bornkamm, UWG, 31. Ed, § 3 RN. 26 sowie Anh. to § 3 III Rn. 0.3 and 28.2), is included in an advertisement a direct invitation tion to children, itself to purchase the advertised goods or to take the advertised service claim or cause their parents or other adults to ne, always inadmissible within the meaning of § 3 Abs. 3 UWG.
A) In the impugned statement "Grab ...” is it, where-of is also assumed the Court of Appeal, by a declaration addressed to children solicitation within the meaning of the number 28 the Annex to § 3 Abs. 3 UWG.
aa) It is not decisive to, whether the as designed, in need of "child”, which is neither legally nor defined in Directive 2005/29/EC, all not yet full-year advertising addressees (Man jumps narrow-kowski, WRP 2007, 1398, 1403 f.; Wirtz Götting / Nordemann, UWG, 2. Ed, § 3 RN. 176) or only minors under the age of 14. Recorded year of life (for about Fezer / Scherer, UWG, 2. Ed, Attachment UWG Nr. 28 RN. 9; Sosnitza and Piper / ohly / Sosnitza, UWG, 5. Ed, Appendix to § 3 Abs. 3 RN. 59; Köhler, WRP 2008, 700, 702 f.; in the trend as well DERS. In Köhler / Bornkamm AAO Anh. to § 3 III Rn. 28.5).
The legislation at issue notice is addressed from the perspective of the relevant persons addressed from the outset not only to be a-
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limited target group of minors on 14 Years (under German law, understanding so on "Young” within the meaning of § 1 Abs. 1 No.. 2 JuSchG), but generally not at full age according to the type of product being advertised Player. Whether the advertised by the defendant role-playing game is also played by adults, and these are also addressed by the challenged advertising, is not critical. After the advertised product and the whole manner of speech can be assumed, that primarily minors and including especially minors, which the 14. Years of age have not yet completed, be targeted (vgl. BGH, Judgment of 6. April 2006 – I ZR 125/03, Wheat 2006, 776 RN. 20 = WRP 2006, 885 – Advertising for ringtones, to § 4 No.. 2 UWG; Judgment of 17. July 2008 – I ZR 160/05, Wheat 2009, 71 RN. 12 = WRP 2009, 45 – Collection campaign for chocolate bars, to § 4 No.. 2 UWG und § 1 UWG aF). It is therefore not only a – not even factual – to anyone looking income-related, of the feel concerned minors (vgl. Köhler into Köh-ler/Bornkamm AAO Anh. to § 3 III Rn. 28.7; Mankowski, WRP 2008, 421, 426), and not even a clearly directed at young people focussed on advertising, from which also the one or other child under 14 Years addressed chen is. For this evaluation shall be sufficient on its own, not even the now not unusual even in the advertising speech of adults with salutation "You” (vgl. Mankowski, WRP 2008, 421, 424 mit Fn. 33; T. Fox, WRP 2009, 255, 258). The advertising at issue has to be assessed in the overall context. It is linguistically marked by a consistent use of direct address in the second person sin-gular and mostly children typical terminology including bundled bräuchlichen anglicisms (vgl. BGH, Wheat 2009, 71 RN. 12 – Sam-melaktion for chocolate bars; Sosnitza and Piper / ohly / Sosnitza AAO Anh. to § 3 Abs. 3 RN. 61). This ranges from, to the selective targeting of minors, even minors under 14 Years, to affirm. – 8 –
bb) The specific way of the offending statement "Grab ...” contains also an "invitation to purchase” within the meaning of the phone number 28 the Annex to § 3 Abs. 3 UWG. It is crucial, whether a purchase is present appeal. For a speech in the grammatical form of a Impera speci-men is not vitally necessary, but sufficient (vgl. Kohler in Kohler / Born-comb AAO Anh. to § 3 III Rn. 28.8; Fezer / Scherer ibid Anh. UWG Nr. 28 RN. 17; Sosnitza and Piper / ohly / Sosnitza AAO Anh. to § 3 Abs. 3 RN. 61; Man-kowski, WRP 2008, 421, 423 f.; Wirtz Götting / Nordemann supra § 3 RN. 176 f.; Stuckel in Harte/Henning, UWG, 3. Ed, English. § 3 Abs. 3 RN. 8; going on Baukelmann, in FS Ullmann, 2006, S. 587, 589; Shallower in Ullmann, UWG jurisPK, 3. Ed, English. to § 3 Abs. 3 No.. 28 RN. 6). This is in the sense of "buying you ...” oder „Hol Dir…” to-understand wording "Grab the opportunity and miss your armor & That certain weapons, Et-what '!” the Fall.
A targeted personal approach of children as part of a sales event is not required, would as the scope of the provision otherwise would run largely empty and the purpose of protection in order not reached (as well as Fezer / Scherer ibid Anh. UWG Nr. 28 RN. 14; Man-kowski, WRP 2008, 421, 423; aA Steinbeck, WRP 2008, 865, 868; left open by the Higher Regional Court Cologne, WRP 2013, 92, 93; vgl. also Köhler, NJW 2008, 3032, 3033). Advertising to children is typically conducted in Print- and Tele-media. The consequent risk of light interference in a purchase decision is not less than that of a direct approach. Because with a speech over the Internet can be the so aroused purchase decision realize particularly fast.
B) This Court has adopted, der Appell "Schnapp Dir ...” fulfill (also) in conjunction with the electronic link to a further Internet, on the "Accessories item” would be offered for sale, not
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Requirements of a product-related "direct invitation” to children to purchase the promoted product. This assessment does not withstand a legal-appeal. In particular, the view of the appellate court can not be accepted, in case of dispute was the prompt "Grab ...” not involved "in an advertisement”, because only the observance of the appeal opens up access to the product by clicking on an advertising electronic link.
aa) The concept of advertising within the meaning of the number 28 the Annex to § 3 Abs. 3 UWG is neither in law nor in Directive 2005/29/EC defines. It goes back to the definition in Art. 2 No.. 1 Directive 84/450/EEC concerning misleading advertising (Today kind. 2 For sure. a RL 2006/114/EG). After advertising means any form in the exercise of a trade, Industry, Craft or profession in order to target, the sale of goods or the provision of services, including immovable property, To promote the rights and obligations. From the overall context arises even without the presentation of concrete products with reasonable clarity, that the impugned statement "Grab ...” is in connection with the business activities of the defendant, which is unzwei doubtful focused on the sale of goods or the provision of services (vgl. Bornkamm in Köhler / Bornkamm AAO § 5 RN. 2.23). In this promotional statement is the call "Grab ...” content integrated and included with it.
bb) Contrary to the further adoption of the appellate tribunal shall request the impugned statement, the children addressed directly in terms of the number 28 the Annex to § 3 Abs. 3 UWG this on, themselves to buy the advertised products.
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(1) The immediacy criterion is the distinction between merely medium-able or indirect – and not factual even so – Prompts, arising for the advertising is addressed only from the circumstances and de-tions, an additional, from potential recruits (intellectual) is required to fully withdrawing step between prompt in advertising and creation of the Erwerbsentschlus-ses (vgl. OLG Cologne, WRP 2013, 92, 93; Köhler in Köhler / Bornkamm AAO Anh. to § 3 III Rn. 28.8; lesson., WRP 2008, 700, 702; Fezer / Scherer ibid Anh. UWG Nr. 28 RN. 15 ff.; this., NJW 2009, 324, 330; this., WRP 2008, 430, 433; T. Fox, WRP 2009, 255, 264; going on Man-kowski, WRP 2008, 421, 424; Wirtz Götting / Nordemann supra § 3 RN. 177). That is prompted by the challenged statement directly to buy, results – as already explained – with sufficient clarity from the imperati-tive appeal "Grab the opportunity” and not only from the other comprehensive circumstances. It is irrelevant, that this "opportunity” in the imme-diate context of the advertisement itself (yet) is left unspecified in terms of offered products or services requested. This is the assumption of a "direct call” in terms of the number 28 the Annex to § 3 Abs. 3 UWG in dispute does not preclude.
In the literature, however having regard to the legal definition in Art. 2 For sure. i Directive 2005/29/EC – an "invitation to purchase” is then a commercial communication, which indicates characteristics of the product and the price in a way, which is the means of the commercial communication used and thereby the consumer in a position ver-sets, to make a purchase – considered, for the application of point 28 the Annex to § 3 Abs. 3 UWG it was necessary, that advertising already be the price and the features of the advertised product ge-named, because potential recruits would be enabled only by the essential product information in the situation, for or against the purchase to decide the (for about Fezer / Scherer ibid Anh. UWG Nr. 28 RN. 13; this., WRP 2008,
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430, 433; this., NJW 2009, 324, 330; Stuckel in Harte/Henning aaO Anh. § 3 Abs. 3 RN. 7; ebenso T. Fox, WRP 2009, 255, 264). According to another view, the instrumental is based in the English and the French language on the history and linguistically dif-ferent versions of the Directive 2005/29/EC, is because of the clear wording insofar the concrete specification of the "promoted product”, but not – also in view of the vulnerability of children raised – the disclosure of price and features of the advertised product in advertising required (for about Kohler in Kohler / Bornkamm ibid Anh. to § 3 III Rn. 28.11; lesson., WRP 2008, 700, 703; lesson., NJW 2008, 3032, 3033; in this sense, probably Sosnitza in Piper / Ohly / Sosnitza ibid Anh. to § 3 Abs. 3 RN. 61; lesson., WRP 2008, 1014, 1026).
(2) The Senate needs the controversy can not be decided. Both required under the first-mentioned indication view of product features and price as well as required under the latter view specific per-duktangabe are given in case of dispute. Contrary to the opinion of the audit results, not just from the challenged statement itself a product relation in terms of the specification of a specific good or service. However, the Re-vision complains rightly, that the Court of Appeal, a division of adver-tising in one using the link provided only generally held purchase appeal and a separate concrete product advertising without buying appeal pre-accepted, creating a uniform advertising events contrary to the habits of the target public artificially divided has.
Not Art. 2 For sure. i Directive 2005/29/EC have the characteristics of the product and the price are specified in a manner, to the means of the commercial communication used. The Court of Justice of the European Union has already decided to, that the question, the extent to which a trader in the context of a call for
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Must inform the purchase of the essential characteristics of a product, must be made by the national courts in individual cases taking account of the nature and characteristics of the product and the used communication media around. This was to be done against the background, whether the consumer is adequately informed, to identify and distinguish the product with regard to a business decision. It can not, regardless of the form, successes in the commercial communications, be the same degree of accuracy in the description of a product ver-arrived (ECJ, Judgment of 12. More 2011 – C-122/10, Wheat 2011, 930 RN. 45 and 48 = WRP 2012, 189 – Consumer Ombudsman / Wing).
This is also in the interpretation of the relevant provision here, the number 28 the Annex to § 3 Abs. 3 To take into account the UWG. Enhance character from the total linguistic context of the challenged advertising statement in conjunction with the additional underlined linked linguistic message "Your”, which leads to a web, on which the products are listed along with prices in detail, the required loading train is made to the offered goods and services. This is sufficient for an immediate invitation to acquire within the meaning of the phone number 28 the Annex to § 3 Abs. 3 UWG.
Whether an advertisement contains a direct solicitation to buy prod-ucts, From the perspective of the average member of the addressed chenen consumer group, therefore, an average consumer, to-remember-seed and assess understanding child (vgl. BGH, Judgment of 12. July 2007 – I ZR 82/05, Wheat 2008, 183 RN. 15 = WRP 2008, 214 – Tony Taler; Wheat 2006, 776 RN. 19 – Advertising for ringtones; Wheat 2009, 71 RN. 14 – Collection campaign for chocolate bars, mwN; Köhler in Köhler / Bornkamm AAO Anh. to § 3 III Rn. 28.8). The addressed circle of players, who is familiar with the functionality of the game, detect due to the impugned
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Statement sufficiently clear in the overall context of the other advertising content, that he will be prompted to purchase for consideration of equipment circumstances, even if the individual goods or services not yet at this point, but only on the next, be represented by a link connected side. It should be, that customers – here the children mentioned – form-in on this linked to the challenged advertising message page not only about the products advertised, but they also can purchase right there.
In case of dispute, there is also the special form of the provision of the neces-sary Product Information. In an advertisement on the Internet habits of Internet users are taken into account, which are know and familiar with the particularities of the Internet, that information can be distributed to the goods offered on multiple pages, which are interconnected by electronic references (vgl. BGH, Judgment of 4. October 2007 – I ZR 143/04, Wheat 2008, 84 RN. 30 = WRP 2008, 98 – Returns; Judgment of 6. June 2013 – I ZR 2/12, juris Rn. 17 – Required Fields on the Internet; vgl. also the judgment 20. July 2006 – I ZR 228/03, Wheat 2007, 159 RN. 20 = WRP 2006, 1507 – Provider identification on the Internet). This applies to, the addressed here ne group of participants in an online role-playing game all the more. One of such consumer has experience shows the ability, to recognize such a reference. He will be precisely those pages linked via an electronic link with a simple "click” call, it needs to provide information on the equipment for their game character. It also has to take into account, that placed at the end of the advertising text Ver-looking not only invites, but just asking you, Click this link to-, to obtain more information (vgl. BGH, Judgment of 12. More 2011 – I ZR 119/10, Wheat 2012, 81 RN. 14 F. = WRP 2012, 962 – In within 24 Hours; Judgment of 6. June 2013 – I ZR 2/12, juris Rn. 17 – The Mandatory disclosures in the Internet). The ver by an electronic reference each other-
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affiliated websites provides the advertising of the defendant addressed chene consumers as belonging together (vgl. BGH, Judgment of 16. December 2004 – I ZR 222/02, Wheat 2005, 438 = WRP 2005, 480 – Epson-Tinte; Judgment of 7. April 2005 – I ZR 314/02, Wheat 2005, 690, 692 = WRP 2005, 886 – Internet mail order; Judgment of 6. June 2013 – I ZR 2/12, juris Rn. 17 – Required Fields on the Internet; OLG Cologne, GRUR-RR 2007, 329, 330). Has he called this page, he is sufficiently informed about the prices and the quality of the equipment offered, without being required still further intermediate steps or of seeking (vgl. the ECJ, Wheat 2011, 930 RN. 56 – Consumer Ombudsman / Wing, Art you. 7 Abs. 4 For sure. i Directive 2005/29/EC; BGH, Wheat 2007, 159 RN. 22 – Provider identification on the Internet).
Under the given circumstances, in case of dispute arises the need for the operation of the link – has meant other than the Court of Appeal – not shown as an addition to be surmounted step, of has yet to be completed by potential recruits between invitation tion and acquisition decision. Doing so may the protection of children serving determining the number 28 the Annex to § 3 Abs. 3 UWG be easily circumvented by, that the information is distributed over the advertised product on two sides connected by a link, the consumers are accustomed to and does not hinder a regular basis for them, in order to reach the necessary product information. It should be, that the Internet allows the child's consumer, immediately implement a decision taken on the impugned appeal, purchase decision into action. A purchase Requesting Internet advertising is clearly superior in its suggestive effect on the child's consumers a corresponding advertising in the print media, because the implementation of the purchase resolve not only to attend a business premises or – in the case of mail order – requires a written or telephone order. According to the findings
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of the District Court, to the Court of Appeal has referred, can the payment be handled in the event of an acquisition, even without particular difficulties over communication channels such as SMS.
III. Since the plaintiff's claim for injunctive relief under § 3 Abs. 3 in conjunction with number 28 the Annex to § 3 Abs. 3 UWG entitled, can remain open, whether the challenged advertising also in accordance with § 4 No.. 1 or 2 UWG is to un-age agen. One recourse to the example of § facts 4 UWG is not required, if the alleged commercial transaction already a per se prohibition in the Annex to § 3 Abs. 3 UWG subject.
IV. The right to reimbursement of Abmahnkosten follows in the claimed amount from § 12 Abs. 1 Sentence 2 UWG.
C. The contested decision must be annulled after (§ 562 Abs. 1 ZPO). A referral of the case to the appeals court is not re-quired, because the Senate may determine, on the basis of the facts established itself, whether the action is well founded, and the matter for final decisions-making is ripe (§ 563 Abs. 3 ZPO). Also a reference to the European Court of Justice for a preliminary ruling on the interpretation of Num-mer 28 of Annex I to Directive 2005/29/EC is not offered. As is apparent from the foregoing statements, are questions about the principle requires interpretation constituent elements in the dispute is not resolved for decision-making in need or in the sense of the Court's reference to the specific circumstances of the case by the Senate to judge for themselves.
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The defendant is then to condemn accordance with the application using a modification of the land-court judgment.
D. The cost is based on § 91 Abs. 1 ZPO, the decision on the provisional enforceability follows from § 708 No.. 2 ZPO.
Bornkamm Pokrant Büscher
Cooking Löffler
Reference: Against the foregoing default judgment appeal was a- set.
Lower courts:
LG Berlin, Decision of 29.06.2010 – 16 The 438/09 –
KG Berlin, Decision of 30.01.2012 – 24 You 139/10 –