In principle, every seller who offers goods via the Internet in an online shop is obliged to provide information about the shipping costs incurred. Every buyer must be able to determine the shipping costs for a product by means of the information provided. If an operator of an online shop does not provide sufficient information about the shipping costs incurred, this constitutes a violation of Sections 3, 4 No. 11 UWG in conjunction with Section 1 (2) sentence 1 No. 2 sentence 2 PAngV due to a lack of information about the amount of the shipping costs.
This infringement generally justifies a warning under competition law.
The Berlin Court of Appeal now had to rule on a particularly exceptional case. In this case, the defendant's offer of a German-language website under a "de" domain was primarily directed at residents of Germany. The defendant also provided sufficient information about the domestic shipping costs.
However, the defendant also declared his willingness to deliver goods abroad. However, the defendant did not inform about the shipping costs abroad.
Due to this circumstance, the defendant was first warned and then taken to court with an interim injunction.
However, since the defendant's internet offer was primarily aimed at German residents and properly informed about the shipping costs for shipping within Germany, the Berlin Court of Appeal has now ruled that in the present case the lack of information on shipping costs abroad constitutes a trivial matter within the meaning of Section 3 of the Unfair Competition Act.
Pursuant to Section 3 UWG, acts of competition are only unfair and subject to a warning if they are likely to impair competition to the detriment of competitors, consumers or other market participants to a more than insignificant extent.
However, the Kammergericht did not consider the lack of information about the shipping costs abroad to be such a significant impairment. The Kammergericht therefore dismissed the applicant's application for an injunction.
The Kammergericht argued that the defendant could only expect a low demand for foreign shipments due to its primary sales market in Germany. Therefore, a separate price list in advance for each product and each European country would involve a disproportionate effort for the defendant - also with regard to the space on the website. It was also not to be expected that there would be a greater risk of imitation because smaller traders, at any rate, would usually shy away from the efforts and risks involved in shipping abroad. Therefore, the infringement in question was only a trivial matter and not worthy of a warning.
It remains to be seen whether other courts will confirm the opinion of the KG Berlin in similar disputes. The Higher Regional Court of Hamm has already taken a different view in a similar case.
We therefore advise you to provide full information about the delivery costs incurred for each delivery area to which you deliver. By doing so, you can avoid a competition law dispute right from the start.
Attorney at Law Michael Ullrich, LL.M. (Information Law)
© Goldberg Attorneys at Law 2007
