On September 9, 2008, the 20th Civil Senate of the Higher Regional Court of Düsseldorf (OLG Düsseldorf) ruled that the display of commercially available playing cards with an incorrect copyright notice by a fortune teller on a website constitutes misleading conduct.
The OLG Düsseldorf held that an average consumer, who believes in card reading and fortune-telling, could be misled into believing that the fortune teller possesses a unique “power over the cards” compared to other practitioners.
In the preliminary injunction proceedings, one fortune teller had filed a lawsuit against her competitor, alleging that the latter had displayed commercially available playing cards on multiple websites and affixed a copyright notice bearing her own name to these cards.
The plaintiff contended that the defendant was unlawfully exploiting a protected right belonging to the card manufacturer. This created the misleading impression that the defendant had developed her own unique card sets, which were endowed with special properties. The defendant, through these cards, implied a unique “power over the cards.” Additionally, the impression was conveyed that other fortune tellers were specifically utilizing her cards.
The Wuppertal Regional Court had, in its judgment of March 18, 2008, denied a claim for injunctive relief. However, upon the plaintiff's appeal, the 20th Civil Senate of the Higher Regional Court (OLG) overturned the Regional Court's decision and affirmed the claim for injunctive relief, concluding that the defendant had engaged in misleading advertising (§ 3, § 5 Paragraph 1 and 2 Sentence 1 No. 3, § 8 Paragraph 1 Sentence 1 of the Act Against Unfair Competition (UWG)). The Senate reasoned that by affixing the copyright notice to the cards, the defendant had created the false impression that she held a proprietary right to the manufacturers' playing cards. The unauthorized use of this protected right could lead a consumer to believe that the defendant possessed a special “power over the cards,” specifically because she utilized the depicted cards. The court deemed it irrelevant that card reading might be considered superstitious and irrational. The decisive factor was the perception of a consumer who sought a card reading and believed in its efficacy.
The decision is legally binding.
Judgment of the 20th Civil Senate of the OLG Düsseldorf of September 9, 2008, file reference I-20 U 123/08
Source: Press release of the OLG Düsseldorf of September 9, 2008, File reference: PM 24/2008, Press Officer Dr. Ulrich Egger, Cecilienallee 3, 40474 Düsseldorf, Telephone: 0211 4971-0, Fax 0211 4971 – 641, pressestelle@olgduesseldorf.nrw.de, http://www.olg-duesseldorf.nrw.de/
© Goldberg Attorneys at Law 2008
Alexander Goldberg; Attorney-at-Law, also Specialist Lawyer for Industrial Property Rights and Specialist Lawyer for Information Technology Law (IT Law) a.goldberg@goldberg.de
