Is also at a peak position promoting a burden of proof in favor of the plaintiff no reason, if he can demonstrate that relevant to the assessment of the Spit zenstellung facts without unreasonable difficulty and prove.
JUDGMENT BGH I ZR 84/13 from 3. July 2014 – We pay top prices
UWG § 5 Abs. 1 Sentence 2 No.. 2
Is also at a peak position promoting a burden of proof in favor of the plaintiff no reason, if he can demonstrate that relevant to the assessment of the Spit zenstellung facts without unreasonable difficulty and prove.
BGH, Judgment of 3. July 2014 – I ZR 84/13 – OLG Hamburg
LG Hamburg
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The I. Civil Division of the Federal Court of the oral negotiation 3. July 2014 by the presiding judge Prof. Dr. Büscher, the judges Prof. Dr. Schaffert, Dr. Kirchhoff, Dr. Koch and the judge Dr. Schwonke
hereby:
An appeal from the judgment of the Hanseatic Higher Regional Court of Hamburg- 3. Civil Division of 28. March 2013 is rejected in Kos-th of the applicant.
By rights
Facts:
The parties are competitors for the purchase of scrap gold. The applicant objects to the, that the defendant on 23. March 2011 in the newspaper “F. -Express” with indication “WE PAY MAXIMUM PRICES FOR YOUR JEWELRY!” has advertised.
The applicant has requested last,
to prohibit the defendant,
in the course of trade in the acquisition of Old Delme Tallen with “Maximum prices of your jewelry” to advertise, when in fact no “Maximum prices of your jewelry” be paid.
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They also sought reimbursement of Abmahnkosten in the amount of 651,80 € plus interest.
The district court dismissed the action. The appointment of the applicant has had no success. With their revision approved by the Court of Appeal, their rejection of the defendant contends, pursuing their claims, the applicant further.
Reasons:
I. The Court of Appeal dismissed the action deemed unfounded and executed to:
The applicant did not set out in and demonstrated, that the defendant actually no “Highest Price” pay for the purchase of jewelry. A reversal of the burden of presenting- and burden of proof in cases of dispute no room, because the applicant was not rely on such a burden of proof. As a competitor of the defendants in the field of Altedelmetallankaufs she was on pricing in this market in the picture and could given-if necessary, submit substantiated by implementing reasonable test purchases also readily tat tual basis of the claim of the defendant.
As far as the applicant for the first time established a deception so that in the second instance, that the peak position statement was not from the traffic he waited-market monitoring preceded by the defendant, is this talk of time and therefore not to be considered.
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II. The directed against that assessment review of the applicant kei-nen success.
1. The judgment of the court below, Hynix has the asserted claim for injunctive relief under § 8 Abs. 1 Sentence 1 in conjunction with § 3 Abs. 1, § 5 Abs. 1 Sentence 2 No.. 2 UWG not, because they have not substantiated Darge-sets, that the defendant, contrary to its advertising actually pay no maximum prices, reveals no error of law.
The Discourse- and the burden of proof for the actual conditions of the alleged misleading lie with the applicant. Also in the area of the Al-leinstellungs- and leading group advertising is not a general reversal of the burden of presenting- to accept and burden of proof. However, the defendant must, taking a leading position in claim, they represent causal facts-set and prove, if its advertising is challenged as inaccurate and the plaintiff these facts may either not or only with considerable difficulty enlighten. A reversal of the burden of presenting- and evidence-last favor of the plaintiff, however, there is no reason, if he can demonstrate that relevant to the assessment of the facts leading position without significant difficulties and prove (vgl. BGH, Judgment of 20. De-cember 1977 I ZR 1/76, Wheat 1978, 249, 250 = WRP 1978, 210 Credit mediation; Judgment of 7. July 1983 I ZR 119/81, Wheat 1983, 779, 781 = WRP 1983, 675 Footwear Market; Judgment of 22. October 2009 I ZR 73/07, Wheat 2010, 352 RN. 22 = WRP 2010, 636 This reflects experience).
So it is in dispute. In the of the defendant on 23. March 2011 offered purchase price of jewelry is not a fact, which could explain the applicant does not or only with considerable difficulty. The appellate court is entitled to consider, that the applicant's
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paid by the defendant on a particular day or at least OFFE-requested daily price readily by a few test sales inquiry or could have learned.
At the Court of Appeals has also adopted, that the applicants-rin is known pricing in this market as a competitor in the field of Altedelmetallankaufs. As a result, at the parties regarding the determination required by competitors prices over the same possible-ties. Accordingly, the applicant had also held lecture on the purchase prices offered by Mitbe-petitors. With this in mind, therefore it requires no burden of proof in favor of the applicant.
2. The applicant in the second instance misleading and thus be-founded, that the defendant prior to advertising “Homes” did not conduct expected of the transport market observation. This alleged by the applicants-rin conduct of the defendant, however, is the head of claim not-understood, of the dispute to a ban on advertising “Maximum prices for your jewelery” limited, be when in fact no such maximum prices be-pays.
For reasons of procedural fairness, it is not necessary, to give the applicant by remitting the case to the Court of Appeals opportunity, to provide a relevant extent also order sought (vgl. BGH, Judgment of 6. October 2011 I ZR 54/10, Wheat 2012, 405 RN. 16 = WRP 2012, 461 Credit Kontrolle; Judgment of 8. March 2012 I ZR 85/10, Wheat 2012, 1153 RN. 15 F. = WRP 2012, 1390 Insurance replacement business). For the Berufungsge-court has held for issue of market monitoring actual lecture under § 531 Abs. 2 Sentence 1 No.. 3 ZPO rejected as out of time. The observations of the applicant to transport expectancy, that a maximum price-
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berühmung not lightly, but will set up solely as a result of market monitoring, as well as the absence of such a market monitoring by the defendant in the dispute are new statement of facts. This would have been present only allow the Beru-fung court, would have if his lack of assertion in the first instance is not due to negligence of the applicants-rin. The exclusion applies to new attack- and Verteidigungsmit-tel in the appeal not undisputed facts, even if they have not been raised at first instance of negligence (BGH, Judgment of 20. More 2009 VIII ZR 247/06, NJW 2009, 2532 RN. 15). But was not disputed by the defendant alone put forward by the applicant Traffic understanding, that a maximum price assertion is established only after a market-observation. The applicant's assertion, the defendant ha-be actually carried out any market research, has this but denied.
The Court of Appeal is expected also entitled to take, that with careful promote the process of presentation of the applicant to Marktbe-observation in the first instance would have been able to take place and must. Contrary to the view of the revision was for the defendant no reason, carry forward on his own in the first instance on the question of market monitoring. Rather, it was also responsible for the extent of the applicant, to keep corresponding lecture.
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3. If the applicant does not justify the coveted injunctive relief against the defendant, it may also be no refund of Abmahnkosten ver-long.
III. The cost is based on § 97 Abs. 1 ZPO.
Büscher Schaffert Kirchhoff
Cooking Schwonke
Lower courts:
LG Hamburg, Decision of 09.09.2011 – 416 HKO 70/11 –
OLG Hamburg, Decision of 28.03.2013 – 3 You 153/11 –