The Bonn Regional Court had to deal with a lawsuit filed by the IDO Verband e.V.. The IDO Verband e.V. was only partially successful.
What did the IDO Association warn about?
The IDO Verband e.V. complained to a shop operator about two alleged competition violations:
The shop operator used the wording in § 7 of its GTCs according to which the customer is only entitled to a right of set-off if its counterclaims are legally established, undisputed or recognised by X. The customer is not entitled to a right of set-off.
The shop operator was not registered in the packaging register (LUCID) with his civil name, but only under his company name, which was also the domain of his online shop.
What was the decision of the Bonn Regional Court?
The Regional Court in Bonn considered § 7 of the General Terms and Conditions to be an infringement of competition, but not the use of the company name in the packaging register (LUCID).
How did the Bonn Regional Court assess the IDO Verband e.V.'s right to sue?
The hopes of many shop operators were disappointed when the Bonn Regional Court affirmed the IDO Verband e.V.'s right to sue.
However, this was not a foregone conclusion for the IDO Verband e.V. (as it is usually presented by the IDO Verband e.V. in the first pleading). It was not sufficient for the Bonn Regional Court to state that members of the IDO Verband e.V. were active in the same market as the shop operator. The IDO Verband e.V. had to substantiate its submission with concrete offers from its members.
At this point, it is worthwhile for affected shop operators and their lawyers to continue to take action.
When is a set-off clause inadmissible?
A violation of Section 307 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) generally leads to a violation of competition law pursuant to Section 3 of the Unfair Competition Act (UWG).
The challenged set-off clause unreasonably disadvantages the customers. The customers could not set off amounts for reductions or claims for damages. The Federal Court of Justice had already rejected a set-off clause as invalid with this argumentation.
Can violations of the Packaging Act (VerpackG) be warned off?
The Regional Court of Bonn took a clear position on this: The Packaging Act constitutes a market conduct rule according to § 3a UWG because it establishes regulations for entrepreneurs regarding obligations in the field of packaging and disposal.
What information must be included in the packaging register (LUCID)?
In the opinion of the Regional Court of Bonn, the civil name does not have to be entered in the packaging register. Even according to the opinion of the Central Packaging Register Office, a company name is sufficient. Furthermore, company law, which has become increasingly liberal, also argues that sole traders or small traders are allowed to use an imaginary name not only in business dealings but also in official dealings. Finally, it had to be taken into account that users would often look for the company name of an online trader and not for civil names.
What does the decision of the Bonn Regional Court mean for you?
You should consider and implement the following:
Can the IDO Association continue to issue warnings?
The IDO Verband e.V. continues to persistently pursue the interests of its "members". Unfortunately, you must expect to be targeted by the IDO Verband e.V. sooner or later.
Should/do I have my GTCs reviewed by a lawyer?
The IDO Verband e.V. takes a close look and tries to find the fly in the ointment.
Unless you have had your GTCs drawn up by a law firm, you should definitely have your GTCs checked. Violations of GTCs are easy to discover for warning parties such as the IDO Verband e.V. and lead to unpleasant consequences. Similar to the shop operator in the proceedings before the Regional Court of Bonn, you cannot plead an oversight or similar. You can also commit competition violations accidentally!
What must you enter in the packaging register (LUCID)?
With regard to entries in the packaging register (LUCID), the Regional Court of Bonn does specify the requirements. It is possible to enter your company name. As the safest way, your entries in the packaging register (LUCID) should be as precise and complete as possible. It is not certain that another court will take a similarly liberal view as the Regional Court of Bonn.
Source: LG Bonn, judgement of 29.07.2020, Az. 1 O 417/19
We are happy to provide advice in the entire area of competition law. If you receive a warning from the IDO Verband e.V., we will also be happy to help you. Take advantage of our years of experience and excellent knowledge in this area.
GoldbergUllrich Lawyers 2020
