The complainant is a renowned restaurant owner and television chef. The defendant in the initial proceedings operates a supermarket. For its opening, the defendant distributed promotional flyers that unauthorizedly displayed an image of the complainant alongside canned soups available as a special offer. The complainant, in her lawsuit, demanded a hypothetical license fee of €100,000. The Regional Court awarded the complainant damages totaling €5,000 plus interest. The Higher Regional Court dismissed the complainant's appeal as unfounded. The complaint against the denial of a hearing remained unsuccessful.
The 3rd Chamber of the First Senate of the Federal Constitutional Court did not accept the constitutional complaint filed against this decision for adjudication.
Neither Article 14 (1) of the Basic Law (protection of property) nor Article 103 (1) of the Basic Law (right to a fair hearing) were violated by the judicial decisions. Specifically, Article 103 (1) of the Basic Law does not provide protection against the court disregarding a party's submission or motion for evidence for reasons of substantive or procedural law.
The courts' procedure of estimating the amount of damages without obtaining an expert opinion was permissible in the present case under Section 287 (1) Sentence 2 of the Code of Civil Procedure (ZPO). According to this provision, in disputes concerning the amount of damages, it remains at the court's discretion whether and to what extent requested evidence should be ordered or whether an immediate estimation of the damages can be made. The estimation of the license fee performed by both courts, which led to the same outcome despite differing assessments of the facts, is not inadmissible according to supreme court jurisprudence. The courts based their decisions on sufficient factual anchors, particularly the depicted person's renown and public image/sympathy value, the advertising's attention value, its dissemination reach, and the role attributed to the depicted person in the advertisement, ensuring that their estimations do not appear arbitrary and were therefore justifiable from a civil procedural perspective.
Consequently, a constitutional violation is even more certainly ruled out.
Order of the Federal Constitutional Court of March 5, 2009 – 1 BvR 127/09 –
Source: Press Release of the Federal Constitutional Court
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
E-mail: m.ullrich@goldberg.de
