The Higher Regional Court of Frankfurt, in its judgment of november 11, 2021, file number 6 U 81/21, had to rule on the highly relevant question for competition law (UWG) of when a competitive relationship exists between competitors.
Does an organic farmer stand in a competitive relationship with an online shop operator?
In the legal dispute to be decided by the Higher Regional Court of Frankfurt, an organic farmer asserted competition law claims for injunctive relief against an online shop operator concerning the offering of muesli mixes and corresponding ingredients. The Regional Court of Frankfurt, in the first instance, upheld the organic farmer's claims. The online shop operator appealed this decision to the Higher Regional Court, arguing that the organic farmer was not a competitor and no competitive relationship existed, as the organic farmer served his customers through different distribution channels.
Do claims under competition law generally require a competitive relationship?
The assertion of claims for removal and injunctive relief under § 8 UWG, as well as for damages under § 9 UWG, is available, among others, to competitors. According to § 2 I No. 3 UWG, a 'competitor' is any entrepreneur who stands in a concrete competitive relationship with one or more entrepreneurs as a supplier or demander of goods or services.
Who is a competitor and when is a concrete competitive relationship to be assumed?
A competitor can therefore only be an entrepreneur in their capacity as a supplier or demander of goods or services. This refers to the business owner. The competitor status of an entrepreneur cannot be determined abstractly; instead, it must be assessed based on the specific business action. This determines whether the acting entrepreneur is in competition with another entrepreneur.
A concrete competitive relationship therefore exists when two entrepreneurs attempt to sell similar goods or services within the same end-consumer circle, with the consequence that the specifically challenged conduct of one competitor can impair, i.e., hinder or disrupt, the sales of the other. In the interest of effective individual protection under competition law, no high demands are to be placed on the existence of a concrete competitive relationship. It is sufficient that the infringer, through their infringing act in the specific case, places themselves in competition with the affected companies in some way. Even companies operating at different economic levels can be in a concrete competitive relationship if they ultimately target the same customer base.
Does an organic farmer stand in a concrete competitive relationship with an online shop operator?
The Higher Regional Court of Frankfurt decided in the present case that the organic farmer was a competitor of the online shop operator and dismissed the online shop operator's appeal. Both parties were suppliers of muesli mixes and ingredients, making these interchangeable products. Consequently, an overlap of markets existed. Furthermore, both parties were active in the same market for mueslis and their ingredients during the relevant period. The question of whether the organic farmer was partly active at upstream economic levels, specifically as a supplier to farm shops, was deemed irrelevant, as the entitlement to claim under competition law as a competitor does not depend on the scope and nature of the competitor's business activity. Similarly, it was not relevant that the parties utilized entirely different distribution channels, namely the organic farmer's email pre-orders and the online shop operator's online shipping.
The decision is legally binding.
Source: Higher Regional Court of Frankfurt, Judgment of november 11, 2021, 6 U 81/20
GoldbergUllrich Attorneys at Law 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
