The First Civil Senate of the Federal Court of Justice had to decide in two cases to what extent companies are prohibited from inquiring about goods or services via fax or email.
In the first case, a car dealer had expressed his interest via fax to a Toyota dealership in immediately purchasing three specific Toyota models – new or used.
In the second case, the provider of an online football game had inquired by email with a smaller football club whether he could place an advertising banner for his product on the club's website in exchange for a sales commission.
According to § 7 para. 2 no. 3 of the UWG (Unfair Competition Act), advertising using fax machines or email is prohibited as an unreasonable nuisance if the addressee's consent is not available. The law does not distinguish between private and commercial addressees in this regard. The Federal Court of Justice has now ruled that commercial inquiries for goods or services also constitute “advertising” within the meaning of this provision. For the need for protection of the owner of a fax or email connection, it is irrelevant whether they receive unsolicited purchase offers for goods or services or inquiries concerning, for example, real estate or antiques. Furthermore, the procurement of goods and services that a company requires for its business activities in the market indirectly serves to promote its sales.
Thus, the question arose whether the addressees in both cases had agreed to receive offers via fax or email. In the case of the Toyota dealership, the Federal Court of Justice assumed that by publishing its fax number in publicly accessible directories, it had given its consent for customers to use the connection as intended for purchase inquiries related to the company's usual sales activities. Unless circumstances indicate otherwise in an individual case, this consent also extends to inquiries from commercial parties. The same applies if a company publishes its email address – for example, on its homepage. A company's fax number and email address are specifically intended to receive inquiries regarding its goods or service offerings.
Applying these principles, the Federal Court of Justice did not consider the car dealer's inquiry to the Toyota dealership to be anti-competitive, as implied consent was to be assumed in this regard.
In contrast, the Federal Court of Justice viewed the inquiry regarding the advertising banner for an online football game as a harassing advertising measure that should be prohibited. Neither does offering paid banner advertising on one's own homepage fall within the typical purpose of a football club, nor is the email address provided by a football club on its homepage for contact purposes intended for such inquiries.
Judgments: Federal Court of Justice (BGH) – Judgment of July 17, 2008 – I ZR 75/06 – Royal Cars – Higher Regional Court Hamm – Judgment of February 23, 2006 – 4 U 164/05 – GRUR-RR 2006, 379 – Regional Court Arnsberg – Judgment of november 7, 2005 – 8 O 106/05 and Federal Court of Justice (BGH) – Judgment of July 17, 2008 – I ZR 197/05 – FC Troschenreuth – Higher Regional Court Düsseldorf – Judgment of October 4, 2005 – I-20 U 64/05 MMR 2006, 171 – Regional Court Kleve – Judgment of March 4, 2005 – 8 O 120/04
Source: Press Release No. 136/2008 of the BGH Press Office of July 17, 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-Mail pressestelle@bgh.bund.de.
Goldberg Attorneys at Law (c) 2008
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
