The Higher Regional Court of Stuttgart (decision of 06.05.2024 - Ref. 2 U 70/23) has dealt with a competition law issue that is likely to be of particular interest to tradespeople.
I. Facts of the case
In the first instance, the defendant tradesman was ordered by the Ulm Regional Court to refrain from advertising the execution of essential activities of the plumbing and heating trade using the terms plumbing emergency service, sanitary emergency service, pipe socket emergency service, heating emergency service and/or water damage restoration without being registered with the plumbing and heating trade in the trade register. The lawsuit was filed by a competition association.
The District Court of Ulm considered the advertising with the aforementioned terms and the performance of corresponding activities to be an unlawful act pursuant to Section 3 (1) in conjunction with Section 3a UWG. § 3a UWG, §§ 1, 7 HwO. Advertising an "emergency service" would not change this assessment. In addition, the District Court of Ulm also found that the defendant tradesman was misleading in that he then claimed to only refer the service to registered tradesmen, as his advertising gave the impression that he provided the service himself.
II. Decision of the Higher Regional Court of Stuttgart
The Stuttgart Higher Regional Court unanimously rejected the appeal of the defendant tradesman. This was not affected by his argument in the appeal proceedings that he did not carry out any activities within the scope of the emergency service that constituted the core area of the plumbing and heating trade.
The Regional Court of Ulm correctly found that the defendant also advertised the repair of heating systems, which does not fall under the so-called minor trade. The activities for which he argued that they did not represent the core area of the trade would also characterize the plumbing and heating trade.
III Outlook
The unanimous decision of the Senate of the Higher Regional Court of Stuttgart shows that a clear breach of competition law was committed by the tradesman.
Competition law is intended to protect against unfair competition. The skilled crafts sector in Germany enjoys a particularly prominent position due to its reputation.
Craftsmen in particular, but also all other professional groups, should therefore always be careful when formulating advertising and advertising slogans.
If in doubt, you are better advised to contact an expert lawyer in advance before you end up having to defend yourself against a warning letter with many costs. Early advice is worthwhile.
