The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for competition law, has ruled that offering a used car in an inaccurate section on the mileage on an internet trading platform is not anti-competitive because it misleads consumers interested in buying a used car.
The parties trade in used motor vehicles which they offer for sale, inter alia, via an internet trading platform. In doing so, the seller can enter various characteristics, for example the mileage, for the vehicle he is offering. A prospective buyer can also select criteria for the vehicle he is looking for. For the mileage, he can enter "any" or, for example, 5,000 km, 100,000 km or 125,000 km.
The defendant advertised a vehicle on an internet trading platform under the heading "up to 5,000 km" with the following bold headline: "BMW 320 d Tou.* Total KM 112,970** ATM- 1,260 KM**". The plaintiff considered the offer of the vehicle in an inaccurate mileage heading to be misleading to the public under competition law and therefore filed a claim against the defendant for injunctive relief.
The Regional Court upheld the action. The Higher Regional Court dismissed the defendant's appeal. The defendant committed a misleading act by providing an incorrect kilometre reading in the search category "up to 5,000 km" and thereby gained a relevant advantage over competitors despite the correction of the kilometre reading in the actual sales offer.
The Federal Supreme Court dismissed the action on appeal by the defendant. It is true that the offer of the vehicle in the incorrect section on mileage contains an untrue statement. In the specific case, however, the incorrect classification was not likely to mislead the public. The correct mileage of the vehicle was already apparent from the heading of the offer without further ado, so that a deception of consumers was excluded. The question of whether a listing in a wrong heading is unfair under competition law from other aspects, such as unreasonable harassment of internet users, was not the subject of the dispute.
Judgment of the BGH of 6 October 2011 I ZR 42/10
Lower courts:
LG Freiburg - Judgment of 12 June 2009 10 O 5/09
OLG Karlsruhe - Judgment of 4 February 2010 4 U 141/09
Source: Press release of the BGH
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: inf@goldberg.de
