are entitled to claims for payment due to the unauthorised use of their names in advertisements for the cigarette brand "Lucky Strike". The plaintiffs, Ernst august Prince of Hanover in case I ZR 96/07 and music producer Dieter Bohlen in case I ZR 223/05, considered an advertising campaign conducted by the defendants to be an unwanted commercialisation of their persons for advertising purposes.
In one advertisement in March 2000, the defendants, alluding to physical altercations in which the husband of the daughter of the then Prince of Monaco was involved in 1998 and 2000, advertised with an image of a crumpled "Lucky Strike" cigarette pack and the tagline: "Was that Ernst? Or august?"
The other advertisement depicted two cigarette packs with a black felt-tip pen leaning against them. In the tagline above, "Look, dear Dieter, that's how easy it is to write great books," individual words were blacked out without becoming illegible. The advertising motif alluded to the fact that Dieter Bohlen's book "Hinter den Kulissen" (Behind the Scenes) had been distributed in 2000 with blacked-out text passages after several court proceedings.
The plaintiffs, who had not consented to the use of their names in the defendants' advertisements, demanded amounts that, in their opinion, are typically paid as a license to celebrities willing to be marketed. The lower courts considered their claims justified. The Higher Regional Court awarded Ernst august von Hannover an amount of €60,000 and Dieter Bohlen an amount of €35,000. However, upon the defendants' appeal, the Federal Court of Justice has now dismissed the actions.
The defendants had used current events as an occasion for their satirical and mocking advertising slogans, without marketing the plaintiffs' names beyond mere attention-grabbing advertising to promote the advertised cigarette brand. While the advertising motifs did not allude to events of historical-political significance, the right to freedom of expression, which also exists in commercial advertising and upon which the defendants could rely, also encompasses entertaining contributions that address matters of general public interest. In the cases at hand, there was a particular public interest in information regarding the events to which the defendants' advertisements alluded. The freedom of expression, constitutionally protected by Article 5 (1) of the Basic Law, supersedes the ordinary legal protection of the pecuniary component of the plaintiffs' general personality rights. The necessary balancing of interests and values weighed against the plaintiffs. The use of the names did not create the impression that the named individuals were endorsing the advertised cigarette brand. Furthermore, the advertisements contained no content that was insulting or derogatory to the plaintiffs. The non-pecuniary interests of the plaintiffs' general personality rights were not violated. As a result of this balancing, the plaintiffs' interest in preventing the mention of their names in advertising had to yield in these cases. Therefore, they were also not entitled to claims for the appropriation of advertising value.
Judgments of the Federal Court of Justice (BGH) of June 5, 2008 – I ZR 223/05 and I ZR 96/07
Lower Courts:
OLG Hamburg – Judgment of november 29, 2005 – 7 U 97/04
Hamburg Regional Court – Judgment of September 23, 2004 – 324 O 285/04 and
Hamburg Higher Regional Court – Judgment of May 15, 2007 – 7 U 23/05
Source: Press Release No. 108/2008 from the Press Office of the Federal Court of Justice dated June 5, 2008, Herrenstraße 45 a, 76133 Karlsruhe, Phone 07 21 – 159-5013, Fax 07 21 – 159-5501, Email: pressestelle@bgh.bund.de
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
