The complainant is a well-known restaurant operator and television chef. The defendant in the main proceedings operates a supermarket. At the opening of the supermarket, the defendant distributed advertising leaflets which unauthorisedly contained a picture of the complainant together with canned soups available on special offer. In her action, the complainant claimed a notional licence fee of €100,000. The Regional Court awarded the complainant damages of €5,000 plus interest. The Higher Regional Court dismissed the complainant's appeal as unfounded. The appeal for a hearing was unsuccessful.
The 3rd Chamber of the First Senate of the Federal Constitutional Court did not accept the constitutional complaint directed against this.
Neither Article 14.1 of the Basic Law (protection of property) nor Article 103.1 of the Basic Law (right to be heard) are violated by the court decisions. In particular, Art. 103 (1) GG does not grant protection against the court disregarding a party's submission or request for evidence on grounds of substantive or formal law.
The approach of the courts to estimate the amount of damage without obtaining an expert opinion was justifiable in the present case according to § 287 para. 1 sentence 2 ZPO. According to this provision, in disputes about the amount of damages, it is left to the discretion of the court whether and to what extent a requested taking of evidence is to be ordered or whether an estimate of the damages can be made directly. The estimate of the licence fee made by both courts, which led to the same result despite a different assessment of the facts, is not inadmissible according to supreme court case law. The courts have based their decisions on sufficient connecting facts, in particular the publicity and the popularity/image value of the depicted person, the attention value, the degree of dissemination of the advertisement and the role attributed to the depicted person in the advertisement, so that their estimates do not appear arbitrary and could therefore already be made according to a justifiable view in terms of civil procedure.
A violation of the constitution is thus ruled out.
Order of the BVerfG of 5 March 2009 - 1 BvR 127/09 -
Source: Press release of the Federal Constitutional Court
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: m.ullrich@goldberg.de
