GWE and the Düsseldorf District Court

from
Elmar Kloss
Lawyer
Specialist lawyer for intellectual property law
Specialist lawyer for information technology law

Give me a call: 0261 - 404 99 45
E-Mail:

The commercial information center is currently distributing this judgment with the assertion:

"The objections raised by you or by various lawyers against our claim are therefore unjustified and unfounded in every respect, so that our outstanding invoice must be paid in any case".

GWE is entitled to express this legal opinion. However, we are convinced that it is wrong and that it would be worthwhile to examine whether it is in itself an unlawful commercial act under Section 3, 5 of the German Unfair Competition Act (UWG).

1.
The District Court of Düsseldorf has ruled on the following facts of the case:

It was not a victim who defended himself, but GWE who sued. In GWE's place, one would probably pick an especially favorable case.
The defendant did not explain the challenge (Tz. 26).
The defendant did not explain why he misunderstood the form.
Surprisingly, the form no longer contains the wording that the reply is "free of charge" (judgment, point 23 in fine).
The defendant has not argued that entries in comparable Internet directories are typically free of charge (but see judgment of the Federal Court of Justice, VII ZR 262/11 of July 26, 2012).

In other words: everything that a good lawyer would have contributed to the defense is missing.

The defendant could not have made it any easier for GWE if the defendant had sought a judgment in favor of GWE …

2.
The judgment of the District Court of Düsseldorf therefore contains only a single sentence that is "decisive" for the question of whether the addressees could misunderstand the specific form.

"In the present case, there is already a lack of explanation of a declaration of avoidance"
(TZ 26).

If the victim of a misrepresentation does not formally invoke it ("contestation"), the court is not allowed to examine whether the form was suitable to mislead.

The collected statements of the Regional Court of Düsseldorf in paragraphs 22 and 23 as well as 27 are therefore, from a legal point of view, a so-called "obiter dictum". The judgment is not based on this idea; they are actually completely superfluous.

From a legal point of view, judges usually write such unnecessary statements when they want to bring legal thoughts of general importance to the public (courts do not usually write "press releases" on general legal issues). Or the judges themselves are not really convinced by the actual "key" sentences of their reasoning and want to confirm to themselves "inwardly" that the result must necessarily be correct.

3.
In this specific individual case, the District Court of Düsseldorf may have had no choice but to rule as it did based on the written submissions of the parties. However, this decision is not generalizable.

The Federal Court of Justice offers a more general orientation in its decision of June 30, 2011, I ZR 157/10 – Branchenbuch Berg:

Even business owners often only skim read forms. There is no reason for business owners to "carefully read" a form if it is obviously only a proof at first glance. This is particularly to be assumed if a form "lacks the typical promotion for the advertised product or service" (BGH No. 25). And this is precisely the unchanged core of the GWE forms known here.

Anyone who did not notice when filling out one of the previously typical GWE forms that it was an offer for an expensive advertisement, the timely declaration of rescission remains effective.

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.