The 4th Civil Senate of the Higher Regional Court of Hamm (OLG Hamm) has ruled that it is misleading if a notification card does not disclose the advertising character of an allegedly missed broadcast.
The reason for the competition law dispute between the companies, each of which was involved in real estate business, was a card which was modelled on a DHL notification card and had found its way into a letterbox of a private house. The content of the "missed" item was not communicated beyond the note "Info mail heavy". The card contained the request: "Please call us!" and a telephone number. According to the findings, not only was the delivery of an information package addressed on the call, but an interest in real estate transactions was also immediately inquired about and a consultation was offered.
The Senate confirmed the prohibition obtained by the competitor against this practice. In the opinion of the Senate, there is deception if the insertion of a card "Benachrichtigung-Paketzustellung" suggests to the addressee that a parcel service company has not been able to deliver a shipment from a third party, but in fact distributes Infopost from a company and if the recipient of the card is to be induced to make an advertising call. The addressee of the disputed card would ultimately be coerced into calling the number indicated because he could see himself in danger of missing a possibly important consignment.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm of 19 August 2010, file number I-4 U 66/10
Source: Press release of the OLG Hamm
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
