Deutsche Post AG cannot, in principle, prevent its competitors' letterboxes from being placed in the immediate vicinity of its own branches or letterboxes. This was decided by the First Civil Senate of the Federal Court of Justice, which is responsible for competition law, among other things.
The defendant, which operates a letter delivery service, set up 52 letterboxes painted red in Nuremberg. They are labelled in white with the inscription "Brief24", the telephone number of a service hotline and the notice "Emptying Monday to Friday from 6.30 pm". The plaintiff, Deutsche Post AG, objects to the fact that 26 of these letterboxes, which are the same height as the plaintiff's, are located in the immediate vicinity of branches or letterboxes of the plaintiff. It believes that this makes customers insecure and that some of them place letters with the plaintiff's stamps in the defendant's letterboxes, which leads to a significantly longer letter delivery time.
The District Court had granted the application as requested. The Court of Appeal had prohibited the defendant from placing four letterboxes, specifically identified by means of photographs, as they appeared.
The Federal Supreme Court reversed the decision of the Court of Appeal and dismissed the action in its entirety. The design of the defendant's red letterboxes clearly differed from the plaintiff's yellow letterboxes. A deception of origin cannot be justified by a similarity in features that are self-evident or at least obvious, such as the height and footprint of the letterboxes. Moreover, the defendant keeps a clear distance to the plaintiff's letterboxes with the red colour, the conspicuously differently designed round box lid and the lettering. Nevertheless, the Federal Court of Justice did not consider it impossible that part of the public might indirectly attribute the defendant's offer to the plaintiff in view of the proximity of the red letterboxes to the plaintiff's branches and assume, for example, that the defendant was a subsidiary of the plaintiff offering a special postal service. However, this misconception does not justify a claim for injunctive relief because it is ultimately based on the fact that the population is not yet used to the fact that the service of letter delivery is not only offered by the plaintiff but also by competitors. The misconceptions are thus an inevitable consequence of the monopoly for postal transport, which existed until 1998 and was only slowly relaxed thereafter. After the abolition or relaxation of a monopoly, the interest of new competitors of the previous monopolist to be able to offer their service adequately is of decisive importance in the required balancing of interests. In this context, there is also a legitimate interest of the competitors in placing their letterboxes in the vicinity of post offices in order to facilitate the delivery of letters for customers who use the services of both the plaintiff and the defendant.
Judgment of the Federal Court of Justice (BGH) of 12 May 2010 - I ZR 214/07 - Red letter box
Lower courts:
Nuremberg Higher Regional Court - Judgment of 30 October 2007 - 3 U 965/07
Nuremberg-Fürth Regional Court - Judgment of 7 February 2007 - 3 O 4832/06
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
