A company's advertising brochure must correctly reflect its company name and address as entered in the commercial register. This was decided by the 4th Civil Senate of the Higher Regional Court of Hamm on 30 October 2012, thus confirming the first-instance ruling of the Regional Court of Dortmund.
The defendant company, operator of a nationwide chain of DIY stores, had listed the address, e-mail address and telephone numbers of the advertised DIY shops in an advertising brochure, but failed to refer to its company name entered in the commercial register and the address of its administration. The plaintiff association of mail order companies objected to this and demanded injunctive relief under competition law. The 4th Civil Senate of the Higher Regional Court of Hamm confirmed the claim for injunctive relief of the plaintiff association.
The defendant's advertising was unlawful because the defendant had not complied with its duty to provide information pursuant to §§ 5a para. 3 no. 2, para. 2 UWG. According to these provisions, an advertising prospectus had to state the identity and address of the offering company. For this purpose, the company name entered in the commercial register, including the legal form, as well as the address of the head office or the administration had to be communicated. This information was necessary so that a consumer could accurately identify the defendant in the event of a legal dispute with the company. It was not sufficient if he could obtain the relevant information himself elsewhere, e.g. via a website of the defendant.
On the basis of a similar violation of competition law, the 4th Civil Senate had already ordered a defendant trading company to cease and desist on 2 February 2012. The defendant in this case had advertised the sale of clothing and underwear nationwide in an advertising brochure without providing its company name and address. Its brochures only referred to an internet address and local branches. This advertising was also unlawful because it deprived the consumer of the information about the defendant's company necessary for a possible claim against it.
Final judgements of the 4th Civil Senate of the Higher Regional Court of Hamm of 30.10.2012 (I-4 U 61/12) and of 02.02.2012 (I-4 U 168/11)
Source: Press release of the OLG Hamm
Goldberg Attorneys at Law 2013
Specialist lawyer for information technology law