The plaintiffs, Ernst August Prinz von Hannover in case I ZR 96/07 and music producerter Bohlen in case I ZR 223/05, argued that the defendants were entitled to payment claims due to the use of their name in advertisements for the cigarette brand "Lucky Strike" which they had not permitted. The plaintiffs, Ernst August Prinz von Hannover in case I ZR 96/07 and the music producer Dieter Bohlen in case I ZR 223/05, saw an advertising campaign carried out by the defendants as a commercialisation of their person for advertising purposes which they did not want.
In one advertisement, the defendants advertised in March 2000, alluding to physical altercations in which the husband of the daughter of the then Prince of Monaco had been involved in 1998 and 2000, with the image of a cigarette pack of the brand "Lucky Strike" pressed in on all sides and the text line: "Was that serious? Or August?"
The other advertisement showed two cigarette packets with a black felt-tip pen leaning against them. In the text line above it, "Look, dear Dieter, it's so easy 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 blackened text passages after several court cases.
The plaintiffs, who had not consented to their names being mentioned in the defendant's advertisements, demanded amounts which, in their view, are usually paid to celebrities willing to market themselves as a licence. The courts of first instance found their claim to be well-founded. The court of appeal awarded Ernst August von Hannover an amount of €60,000 and Dieter Bohlen an amount of €35,000. On appeal by the defendants, the Federal Supreme Court has now dismissed the claims.
The defendants had taken current events as the occasion for their satirical, mocking advertising slogans without going beyond a mere attention-grabbing advertisement to market the plaintiffs' names to promote the advertised brand of cigarettes. Admittedly, the advertising motifs did not allude to events of historical-political significance. However, the right to freedom of expression, which also existed in the field of business advertising and on which the defendants could rely, also included entertaining contributions that addressed issues of general social interest. In the cases in dispute, the public had a particular interest in being informed about the events to which the defendants' advertisements alluded. The freedom of expression of opinion, constitutionally protected by Article 5.1 of the Basic Law, superseded the protection under simple law of the property component of the plaintiffs' general rights of personality. The required balancing of interests and goods was to the detriment of the plaintiffs. The use of the names did not create the impression that the named persons recommended the advertised cigarette brand. The advertisements did not contain any insulting or disparaging content. The idealistic interests of the plaintiffs' general right of personality were not violated. As a result of this weighing, the plaintiffs' interest in preventing their names from being mentioned in the advertisements had to take a back seat in the cases in dispute. For this reason, they could not be granted any claims for the skimming of advertising value.
Judgments of the Federal Supreme Court (BGH) of 5 June 2008 - I ZR 223/05 and I ZR 96/07
Lower courts:
Hamburg Higher Regional Court - Judgment of 29 November 2005 - 7 U 97/04
Hamburg Regional Court - Judgment of 23 September 2004 - 324 O 285/04 and
Hamburg Higher Regional Court - Judgment of 15 May 2007 - 7 U 23/05
Source: Press release no. 108/2008 of the Press Office of the Federal Court of Justice of 5 June 2008, Herrenstraße 45 a, 76133 Karlsruhe, telephone 07 21 - 159-5013,fax 07 21 - 159-5501, e-mail: pressestelle@bgh.bund.de.
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
