Performance competition
The concept of competition on the merits is in competition law , the antithesis of the concepts of disability competition and non-competition on the merits. The Supreme Court meant by the Benrather gas station case all those behaviors in the competition, "which consist in promoting the sales activity of their own business operations with the means of its own performance" . It adopted this definition directly from Nipperdey , who had prepared an expert opinion for one of the litigants.
Subsequently, the case law used the criterion of performance competition to fill in the concept of good morals within the framework of § 1 UWG ( old version): According to this, fair behavior in competition was characterized by having a head start on features such as quality, value for money, service, etc. Tried to win over the competition and did not resort to “non-performance” means such as customer deception , unreasonable harassment or the targeted obstruction of competitors. The term was also used in antitrust law .
The literature has long been very hostile to the concept of performance competition. The main point of criticism is that the indefinite legal concept of good morals is being replaced by the no less vague concept of performance competition. This only describes empirical facts that can be grasped intuitively and also carries the risk of hindering innovative forms of marketing. Accordingly, the term no longer plays a role in current case law, even if it is sometimes argued that it should be retained as an interpretation aid for the specification of the general clause in Section 3 (1) UWG.
Individual evidence
- ^ So Immenga / Mestmäcker / Kellermann , competition law: GWB. 4 ed. § 24 marginal number 38.
- ↑ RG, judgment of December 18, 1931 - II 514/30 - RGZ 134, 342, 352.
- ^ Nipperdey, Competition and Existence Destruction, 1930.
- ↑ Examples from the case law from Piper / Ohly / Sosnitza, UWG 5th ed. Introduction A. Rn. 23: BGHZ 51, 236, 242 = GRUR 69, 287, 289 - Stuttgarter Wochenblatt I; BGHZ 81, 322, 329 = GRUR 82, 60, 61 - original spare parts II; BGHZ 82, 375, 395 = GRUR 82, 425, 430 - eyewear drop-off points; BGHZ 139, 368, 374 = GRUR 99, 264, 266 - cell phone for 0.00 DM; BGHZ 149, 247, 272 = GRUR 02, 360, 367 - HIV POSITIVE II.
- ↑ BGH, judgment of October 26, 1972 - KZR 54/71 - NJW 1973, 280 - Cash registers.
- ↑ Instead of many: Harte-Bavendamm / Henning-Bodewig / Ahrens , UWG. 2 ed. Introduction F. Rn. 79; Piper / Ohly / Sosnitza, UWG 5th edition. Introduction A. Rn. 23.
- ↑ Hölzler / Satzky, distortions of competition caused by retail companies with high demand: possibilities and limits of their control, 1980, p. 33.
- ↑ GK / Schünemann Einf D Rdn 81 ff.
- ↑ Koppensteiner, WRP 2007, 475, 478; Sacker, WRP 1984, 1199, 1207
