The Bielefeld Regional Court, through its judgment of november 23, 2021, File No. 15 O 104/20, was tasked with determining the legal permissibility of advertising using customer names on the internet.
Are companies permitted to use their customers' names for advertising purposes?
The plaintiffs are prominent German insurance groups. The defendant, a self-described 'profiler,' operates as a speaker, author, and personal development coach, among other roles. Her website includes a 'References' section, which alphabetically lists companies she has worked with, including the plaintiffs. In September 2018, the plaintiffs requested the defendant to remove their names from her online presence. Initially, the defendant complied. However, the plaintiffs' names subsequently reappeared on the website. Consequently, the plaintiffs issued a formal warning to the defendant, demanding a cease and desist declaration subject to penalty. The defendant rejected these claims. As part of the preliminary injunction proceedings initiated at the Bielefeld Regional Court, the plaintiffs sought, inter alia, an injunction against the defendant's use of their names.
Does the mention of a company's name infringe upon its corporate personality rights?
In the opinion of the Bielefeld Regional Court, the plaintiffs' corporate personality rights were indeed violated. The court found that the defendant's inclusion of the plaintiffs' names in the 'Customers & References' section impacted the social sphere of their corporate personality rights, as this naming implicitly conveyed a past collaboration with the plaintiffs. Consequently, the plaintiffs' names were associated with the defendant's diverse service offerings and her public profile.
Companies retain the prerogative to determine who may utilize their names for promotional purposes.
The plaintiffs asserted a legitimate interest in not being identified as customers or references for the defendant on her website, as they possess the inherent right to define their social standing and to control the purposes for which their name is utilized. This interest was deemed to outweigh the defendant's legitimate concerns. While the defendant's counter-interest in advertising with customer names and providing references is generally safeguarded by the freedom of profession under Art. 12 para. 1 of the Basic Law, given that online advertising constitutes part of her business operations, this interest is subordinate to the plaintiffs' legal interests. Consequently, no obligation for the plaintiffs to tolerate the use of their names was found to exist.
What are the implications of this judgment for your operations?
In light of the Bielefeld Regional Court's judgment, businesses should exercise prudence when dealing with online customer reviews, especially concerning the explicit mention of names. Unlawful naming practices can lead to expensive cease and desist letters and demands for legally binding declarations of cessation, enforceable by penalties.
Please feel free to contact us at any time. We would be pleased to review your advertising claims for potential legal infringements and advise you on the necessary steps to lawfully advertise with your clients' names.
Source: Bielefeld Regional Court, Judgment of november 23, 2021, Ref. 15 O 104/20 (legally binding)
GoldbergUllrich Attorneys-at-Law 2022
