Reputation exploitation

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Reputation exploitation (law) denotes an unfair issue in the protection of services under competition law . It relates to unfair competition , such as brand imitations, imitation of manufacturers, comparative advertising and the like, but also copyrights. It is located in § 4 No. 3 lit. b UWG .

In simple terms, one speaks of reputation exploitation when someone with the good reputation of a competitor gains an advantage over other competitors and thus incurs disadvantages.

conditions

Unfair behavior

Anyone who offers goods or services that are an imitation of the goods or services of a competitor is acting unfairly if he improperly exploits or impairs the appreciation of the imitated goods or services.

exploitation

Exploitation describes, based on humanistic ideas, a situation that is fundamentally worthy of criticism and which has undergone various forms of economic theory and law (e.g. labor law, criminal law).

copyright

The various forms of intellectual property rights; one of the narrower spaces describes reputation exploitation

Reputation exploitation is in a field of fair trading law and protection of trademarks (trademark law)

Limit of support

Leaning reputation exploitation § 4 No. 3 b UWG: The protection from § 4 No. 3 UWG is not limited to the imitation, but also covers cases in which third-party products or services are used as the preamble to the paragraph (similar or dissimilar) goods . Open reference to the recommendation of one's own goods ("replacement for ..."; "just as good as ...") is regularly anti-competitive and at the same time can be unfair obstructive competition according to § 4 No. 4 UWG. “Somewhat like” was not interpreted that way in decisions.

Examples

  • Same name : The manufacturer of the Merci sweets sued a small bakery with four shops under the name "Café Merci" for reputation exploitation until the court gave them the right to do so. The case attracted the public. The manufacturer has allowed the café to use its name since 2016.
  • Name part: The ARD with the protected brand Tagesschau sued the newspaper (TAZ) successful because they wanted to call a Rublik news. However, after a legal dispute with ProSieben, the Tagesschau was defeated before the Hanseatic Higher Regional Court in Hamburg : Programs may begin with "Tages-", as the selection of meaningful names is limited.
  • Comparative advertising: The image sued the newspaper (TAZ). The TAZ is playing in a cinema advertisement: a kiosk seller first offers the usual Bild newspaper to a regular customer who is oversubscribed with undercladding and instead pushes a taz edition at him. Shortly afterwards, the customer receives his Bild newspaper and they both start to laugh out loud. It follows the slogan taz is not for everyone . The Axel Springer Verlag was the demonstration by provisional ban; Nevertheless, the cinema spot was awarded the First Steps Award in 2006. In the appeal hearing before the Federal Court of Justice (BGH), the latter overturned the decisions of the lower courts in its judgment (Az .: I ZR 134/07) of October 1, 2009 and dismissed the complaint of the Bild-Zeitung. The taz can therefore use the commercials again.
  • Links on the Internet: The case of reputation exploitation is discussed as an argument against the impunity of hyperlinks: The LG Hamburg comes to the conclusion that linking different websites creates the impression that there are also relationships between the operators. On the other hand, Jörg Dittrich, attorney for commercial legal protection, is of the opinion that protection against unfair reputation exploitation [comes] only into consideration if special circumstances arise in addition to the generally permissible attachment to the external reputation, such as the offensive misuse of the external reputation for promotion of your own paragraph What cannot be given simply by setting a web link.

See also

Individual evidence

  1. ↑ Federal Ministry of Justice and Consumer Protection: § 4 UWG - single standard. Retrieved May 22, 2019 .
  2. ↑ Prof. Dr. Dirk Sauerland: Definition: exploitation. Retrieved May 22, 2019 .
  3. ↑ Dr. Martin Meggle-Freund: competition law: reputation exploitation (ipwiki). Retrieved May 22, 2019 .
  4. ↑ TOPIC. Werbeagentur GmbH :: BILD-Zeitung judicially stops TAZ advertising film. November 21, 2006, accessed May 22, 2019 .
  5. ↑ Christian Rath: taz wins in court: You can laugh at "Bild" readers . In: The daily newspaper: taz . October 1, 2009, ISSN  0931-9085 ( taz.de [accessed on May 22, 2019]).
  6. ↑ Federal Court of Justice: Federal Court of Justice on the limits of humorous advertising comparisons. Retrieved May 22, 2019 .
  7. ↑ LG Hamburg: Uncompetitive link. In: JurPC-Web-Doc. 0061/2001. 2001, accessed May 22, 2019 .
  8. ↑ Jörg Dittrich: On the question of the copyright and competition law admissibility of hyperlinks . WebDok 72/2002, doi : 10.7328 / jurpcb / 200217594 ( jurpc.de [accessed on May 22, 2019]).