The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law among other things, has ruled that a football association must accept it if short film clips of amateur football matches of its members are made publicly available on the internet.
Under the internet address"http://www.hartplatzhelden.de/", the defendant operates an internet portal financed by advertising revenue, where visitors to amateur football matches can post films they have recorded themselves, reproducing individual scenes of the match lasting one to one and a half minutes. The film clips can be called up and viewed by other internet users free of charge.
The plaintiff, the Württembergischer Fußballverband e.V. (Württemberg Football Association), is of the opinion that as the organiser of the matches in its association area, it has the exclusive right to exploit them commercially. He therefore demanded injunctive relief from the defendant on the grounds of unlawful assumption of services, anti-competitive obstruction and interference with his right to his established and practised business.
The action was successful before the Stuttgart Regional Court. The Stuttgart Higher Regional Court dismissed the appeal and allowed an appeal.
The Federal Supreme Court denied an exclusive right of exploitation of the plaintiff association and dismissed the action accordingly. The decisive factor was that, contrary to the opinion of the Higher Regional Court, the publication of the film excerpts did not constitute an unfair imitation of a protected performance under § 4 no. 9 letter b UWG. Moreover, in the opinion of the Federal Court of Justice, the service provided by the plaintiff in organising and staging the football matches does not require such protection. The plaintiff can sufficiently secure a corresponding economic exploitation of the football matches in its association area via the clubs belonging to it by prohibiting visitors to the football matches from filming by invoking the house rights. Under these circumstances, the Federal Court of Justice denied a special exclusive right of sports associations also under the further aspects cited by the plaintiff.
Judgment of the BGH of 28 October 2010 - I ZR 60/09 - Hartplatzhelden -
Previous instances: OLG Stuttgart - Judgment of 19 March 2009 - 2 U 47/08 (CR 2009, 386 = MMR 2009, 395); LG Stuttgart - Judgment of 8 May 2008 - 41 O 3/08 KfH (CR 2008, 528 = MMR 2008, 551)
___________________________________________________________________
§ 4 No. 9 b UWG reads (as of 02.11.2010):
In particular, anyone who
...
offers goods or services which are an imitation of the goods or services of a competitor, if it
...
b)unreasonably exploits or impairs the reputation of the counterfeit goods or services ...
___________________________________________________________________
Source: Press release of the BGH
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
