In a judgement of 11.09.2003 (Ref.: 29 U 2681/03), the OLG Munich found that a web imprint which could be accessed via two steps by means of the links "Contact" and "Imprint" complied with the legal requirements.
The complaint was filed by the Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. (Central Office for Combating Unfair Competition). (Wettbewerbszentrale for short), which asserted claims for injunctive relief against the owner of the domain aerztlichepraxis.de, complaining, among other things, that the imprint was only made available indirectly via the link "Contact" and the further link "Imprint". The Wettbewerbszentrale assumed that there was a violation of § 6 TDG and § 10 MDStV because the provider identification was not directly accessible and the term "contact" was misleading. The Munich Regional Court upheld this. The domain holder appealed.
The OLG Munich overturned the decision insofar as it concerned the provider identification. On the one hand, the requirements of § 6 TDG and / or § 10 MDStV had to be examined, whereby the court first made it clear that, due to the agreement between § 6 TDG and § 10 para. 2 MDStV, it did not matter whether the defendant operated a commercial teleservice or media service. Then it had to be examined whether a claim for injunctive relief existed under § 2 para. 1, para. 2 sentence 1 UKlaG in conjunction with § 312c para. 1 sentence 1 no. 1 BGB in conjunction with § 1 para. 1 BGB-InfoV.
On the claim for injunctive relief under the TDG or MDStV
From the court's point of view, the web imprint complied with the legal transparency requirements of § 6 sentence 1 TDG and § 10 para. 2 sentence 1 MDStV, because it could be found at any time in a clearly visible place and without a lengthy search. Interpreting the requirement to reach the provider identification directly as limiting the path to the provider identification to a mouse click goes too far. The legal formulation "immediate accessibility" is to be understood in the sense of accessibility without significant intermediate steps.
According to the court, the objectionable designation "Contact" also meets the requirements: In the provision of tele- or media services, the designations "contact" or "imprint" have become established in the trade.
"The designations "contact" and "imprint" are understood by the situation-adequate average attentive, informed and reasonable users of the Internet (World Wide Web) as a reference to the information on provider identification pursuant to § 6 sentence 1 TDG, § 10 para 2 sentence 1 MDStV."
Unfortunately, the plaintiff had submitted too late that actually three steps were necessary, because after calling up the "contact" link, one would first have to scroll to find the "imprint" link. This circumstance would probably have led to a different result, looking at the Backstage decision, which also addressed scrolling, although the term for the first link was also unusual.
On the right to injunctive relief under the Injunctions Act and the BGB Injunctions may be brought, inter alia, by legally competent associations for the promotion of commercial interests, provided that a substantial number of traders belong to them. The Wettbewerbszentrale is one of them.
However, she had no luck with this before the Munich Higher Regional Court. That meant, the request (after § 2 exp. 1, exp. 2 No. 1 UKlaG i.V.m. § 312c Abs. 1 sentence 1 No. 1 BGB i.V.m. § 1 para. 1 BGB-InfoV) goes too far from the outset:
"This is because the information obligations standardized in Section 1 (1) BGB-InfoV refer, among other things, to the identity and the summonable address of the entrepreneur, but not to the authorized representative of a legal entity, not to the commercial register in which the entrepreneur is registered, and also not to the corresponding register number. Furthermore, the aforementioned information requirements only relate to distance selling transactions with consumers, not to distance selling transactions with entrepreneurs (cf. Section 312b (1), Section 13, Section 14 BGB)."
Also with regard to § 312c para. 1 sentence 1 no. BGB in conjunction with. § Section 1 (1) BGB-InfoV, whereby the BGB Information Obligations Ordinance (BGB-InfoVO) regulates the information obligations for distance contracts, there was no success. The claim was aimed at the transparency requirement on which § 312c is based. In this case, the court was of the opinion that the entrepreneur must inform the consumer in a clear and comprehensible manner, which the domain holder also did in this case. The requirements of this transparency requirement do not go beyond the transparency requirement contained in § 6 sentence 1 TDG, § 10 para. 2 sentence 1 MDStV.
The new Munich decision thus brings a little more light into the grey of the web imprint. For the question of two steps on the way to provider identification has not yet been asked in this way. In the aforementioned Backstage decision, the fact that one had to scroll on low-resolution screens to find the link "imprint" was taken into account.
