When does a competitive relationship exist between competitors?

The Frankfurt Higher Regional Court had to decide on the question of when a competitive relationship between competitors exists, which is very relevant for competition law (UWG), in its judgment of 11.11.2021, reference 6 U 81/21.

Is an organic farmer 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 claims for injunctive relief under competition law against an online shop operator with regard to the offering of muesli mixtures and corresponding ingredients. The Frankfurt Regional Court upheld the organic farmer's claims in the first instance. The online shop operator appealed to the Higher Regional Court, arguing that the organic farmer was not a competitor and that there was no competitive relationship because the organic farmer served his customers through different distribution channels.

Do claims under competition law generally presuppose a competitive relationship?

Among others, competitors are entitled to assert claims for removal and injunctive relief pursuant to Section 8 UWG and for damages pursuant to Section 9 UWG. According to Section 2 I No. 3 UWG, a "competitor" is any entrepreneur who is in a concrete competitive relationship with one or more entrepreneurs as a supplier or buyer 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 his capacity as a supplier or consumer of goods or services. This means the owner of the business. The competitor status of an entrepreneur cannot be determined in the abstract, rather the respective concrete business act must be taken into account. It determines whether the acting entrepreneur competes with another entrepreneur.

A concrete competitive relationship therefore exists if two entrepreneurs try to sell similar goods or services within the same end consumer group with the consequence that the concretely complained about joke behaviour of one competitor can affect the other, i.e. hinder or disturb sales. In the interest of effective individual protection under competition law, no high requirements are to be placed on the existence of a concrete competitive relationship. It is sufficient that the infringer, through his infringing act in the specific case, competes in some way with the undertakings concerned. Even undertakings operating at different economic levels can be in a concrete competitive relationship if they address the same group of customers as a result.

Is an organic farmer in a concrete competitive relationship with an online shop operator?

In the present case, the OLG Frankfurt ruled that the organic farmer was a competitor of the online shop operator and rejected the appeal of the online shop operator. Both parties were suppliers of muesli mixtures and ingredients for them. They are therefore interchangeable products. There was therefore an overlap of the markets. In terms of time, too, both parties were active on the same market for mueslis and their ingredients. The question of whether the organic farmer was partly active at upstream economic levels, namely as a supplier of farm shops, was irrelevant, because the entitlement to claim as a competitor under competition law did not depend on the scope and structure of the competitor's business activity. Nor was it to be taken into account that the parties served completely different distribution channels in the form of the organic farmer's pre-order by e-mail and the online dispatch of the online shop operator.

The decision is final.

Source: OLG Frankfurt, judgement of 11.11.2021, 6 U 81/20

 

GoldbergUllrich Lawyers 2021

Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)

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