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German Act Against Unfair Competition (Amended Version): Continuing Dispute About the Free Choice of Legal Venue (Fliegender Gerichtsstand)

The controversy surrounding the abolition of the free choice of legal venue by the Law to Strenthen Fair Competition of 2 December 2020 (see article of 15 September 2020) is entering a new round:

As reported here (cf. article of 25 February 2021), the Regional Court of Düsseldorf had initially determined in preliminary injunction proceedings (decision of 15 January 2021, ref. no. 38 O 3/21) that the exception in Section 14 (2) sentence 3 no. 1 UWG was not relevant “contrary to its (in this respect misleading) wording”. Rather, this only applies to infringements in electronic commerce or in telemedia. The Düsseldorf Higher Regional Court (Oberlandesgericht Düsseldorf) decidedly contradicted this opinion shortly afterwards and raised considerable concerns against this interpretation (decision of 16 February 2021, case no. I-20 W 11/21).

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

In preliminary injunction proceedings, the Regional Court of Frankfurt a.M. has now followed the interpretation of the Regional Court of Düsseldorf (decision of 11 May 2021, ref. 3-06 O 14/21). In the underlying case, the Regional Court of Frankfurt also assumed that Section 14 (2) sentence 3 no. 1 UWG was not relevant. Furthermore, it stated that the provision “lacks the necessary unambiguity” and that, in view of the history of its creation, a textual alignment with Sec. 13 (4) No. 1 UWG had been intended, which, however, had been omitted due to an editorial oversight. With reference to the case law of the Düsseldorf Regional Court, the provision should therefore be reduced teleologically so that it only covers infringements that are linked to an act in electronic legal transactions or in telemedia.

In a detailed reasoned decision, the Regional Court of Düsseldorf has in the meantime once again taken a position on the criticism that has been made in the literature and in the decision of the Higher Regional Court and has confirmed its view and, as a result, the preliminary injunction from January (judgment dated 21 May 2021, file no. 38 O 3/21).

The “open” controversy between the Regional Court and the Düsseldorf Higher Regional Court, which can be inferred from the respective reasons for the decisions, may be surprising. However, the Düsseldorf Regional Court‘s interpretation seems to have met a certain degree of approval in the literature and in legal practice. It remains to be seen whether further courts of lower instance will follow the interpretation of the Regional Courts in Düsseldorf and Frankfurt a.M.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Authors

Dr Christian Meyer

Principal

Attorney-at-Law

Certified Specialist Lawyer for Intellectual Property