The 20th Civil Senate of the Düsseldorf Higher Regional Court (OLG Düsseldorf) ruled on 9 September 2008 that the presentation of commercially available playing cards with an incorrect copyright notice of a fortune teller on a website is misleading.
According to the OLG Düsseldorf, an average consumer who believes in card reading and fortune telling could be given the misleading impression that the card reader exercises special "power over the cards" compared to other card readers.
In the preliminary injunction proceedings, a cartomancer had sued her competitor because the latter had displayed commercially available playing cards on several internet pages and had placed a copyright notice with her name on the cards.
The applicant argues that the defendant is making unauthorised use of a property right, namely that of the card manufacturer. The misleading impression was created that the defendant had developed its own packs of cards which had a special effect. With these cards, the defendant suggested that it had special "power over the cards". In addition, the impression was created that other fortune tellers also used her cards.
In its judgement of 18 March 2008, the Regional Court of Wuppertal denied a claim for injunctive relief. On the plaintiff's appeal, the 20th Civil Senate of the Higher Regional Court (OLG) reversed the Regional Court's judgement and affirmed a claim for injunctive relief because the defendant had advertised in a misleading manner (§ 3, § 5 paragraph 1 and 2 sentence 1 no. 3, § 8 paragraph 1 sentence 1 Unfair Competition Act (UWG)). The Senate explained that the copyright notice on the cards gave the defendant the incorrect impression that it had a property right in the playing cards of the manufacturers. The unauthorised use of the property right could give a consumer the impression that the defendant had special "power over the cards" precisely because it used the cards depicted. It was irrelevant that card reading was superstition and irrational. What was decisive was the idea of a consumer who wanted to have cards read and believed in them.
The decision is final.
Judgment of the 20th Civil Senate of the Düsseldorf Higher Regional Court of 9 September 2008, file number I-20 U 123/08
Source: Press release of the Higher Regional Court of Düsseldorf of 9 September 2008, file number: PM 24/2008, Press Secretary 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 and at the same time specialist attorney for intellectual property law and specialist attorney for information technology law (IT law) a.goldberg@goldberg.de
