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German Act against Unfair Competition (Amended Version): Dispute about the Free Choice of Legal Venue (fliegender Gerichtsstand) – Continued

The Higher Regional Court of Frankfurt a.M. takes side with the Regional Courts of Frankfurt and Düsseldorf in the controversy about the abolition of the free choice of legal venue by the Law to Strengthen Fair Competition of 2 December 2020 (see also the articles on this dated February 25, 2021 and June 24, 2021).

First of all, the Düsseldorf Regional Court had found in a preliminary injunction proceeding (decision of January 15, 2021, case no. 38 O 3/21) that the exception in Section 14(2) sentence 3 no. 1 German Act Against Unfair Competition contrary to its wording does not include any unfair behavior in electronic business transactions or in telemedia. Rather, according to its meaning and purpose, this only applies to violations in which the asserted legal violation is actually linked to an act in electronic business transactions or in telemedia. Shortly afterwards, the Higher Regional Court of Düsseldorf decidedly contradicted this opinion and raised considerable concerns against this interpretation (decision of February 16, 2021, case no. I-20 W 11/21).

Unimpressed by this, the Düsseldorf Regional Court stated shortly [MS1] thereafter in a further order (dated February 26, 2021, case no. 38 O 19/21) that it was adhering to its above-mentioned position and expressly referred to the lack of binding effect of the obiter dictum decision of the Düsseldorf Higher Regional Court.

A short while later, the Regional Court of Frankfurt a.M. agreed with the opinion of the Düsseldorf Regional Court (decision dated May 11, 2021, case no. 3-06 O 14/21). Referring to the case law of the Düsseldorf Regional Court, it stated that the scope of the provision should be narrowed to a teleological interpretation so that it only covers infringements that are linked to an act in electronic legal transactions or in telemedia.

In themeantime, the Higher Regional Court of Frankfurt a.M. has confirmed the opinion of the Regional Courts of Frankfurt a.M. and Düsseldorf (decision dated October 8, 2021, case no. 6 W 83/21).

Thus, the Düsseldorf Regional Court’s interpretation of Section 14(2), sentence 3 no. 1 German Act against Unfair Competition has gained further approval and thus meanwhile is likely to be regarded as the prevailing opinion. Ultimately, however, a clarifying decision by the Federal Court of Justice on this matter would seem to be a welcome consequence. Until then, in view of the above-mentioned case law of the regional courts, the choice of a supposedly favorable place of jurisdiction for the respective case on the part of the applicant should continue to be permissible in practice.


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Authors

Dr Christian Meyer

Partner

Attorney-at-Law

Certified Specialist Lawyer for Intellectual Property