When is "a company" the market leader in the sporting goods sector

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible among other things for competition law, has overturned the conviction of the department stores' company Karstadt in the dispute over the claim that Karstadt is the market leader in the sports product range and referred the case back to the Munich Higher Regional Court.

On Karstadt's website in August 2007, under the heading "The Company", the statement was made that Karstadt was the market leader in the sports product range. The plaintiff, the German organisation of the internationally active INTERSPORT group, objected to this statement as misleading and brought an action for injunctive relief against Karstadt before the Munich I Regional Court. It claimed that the sports shops operating under the INTERSPORT logo in its group had achieved a significantly higher annual turnover than the defendant in the 2005/06 business year. The District Court upheld the claim. The defendant's appeal against this decision was unsuccessful.

The Federal Supreme Court (BGH) overturned the appeal judgement and referred the case back to the Court of Appeal. It emphasised that it is not sufficient for the question of misleading if - as found by the Munich Higher Regional Court - only a not entirely insignificant proportion of the consumers addressed form misconceptions about Karstadt's market position on the basis of the contested advertising. Rather, misleading is only to be assumed if the advertising statement is capable of causing a misconception in a significant proportion of consumers. On the basis of the overall impression conveyed by the specific advertising, the consumers addressed see the claimed market leadership as a quantitative indication that Karstadt achieves the largest turnover in the sports goods market. According to what the Court of Appeal has found so far, this advertising statement is not incorrect, even if the individual companies merged in the plaintiff together generate a larger turnover than the defendant. When making a comparison with the defendant, the public addressed by the advertisement will, according to experience, only consider those companies which, like the defendant, are responsible for their turnover development as individual companies. For a misleading statement it is therefore necessary that the general public addressed by the advertisement at least considers the companies merged in the plaintiff as an economic unit. The court of appeal had not made sufficient findings in this regard. The legal dispute was therefore referred back to the Court of Appeal, which will have to make up for the missing findings.

Judgment of the BGH of 8 March 2012 - I ZR 202/10 - Marktführer Sport

Lower courts:

LG Munich I - Judgment of 17 January 2008 - 4 HK O 18422/07

OLG Munich - Judgment of 24 July 2008 - 29 U 2293/08

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

 

Seal