The First Civil Senate of the Federal Court of Justice (BGH), which is responsible among other things for competition law, has ruled that advertising for gravestones by post two weeks after the death can no longer be prohibited under competition law as unreasonable harassment of the bereaved.
The defendant trades in gravestones. He sent an advertising letter to a bereaved woman who had reported the death of a relative in the local daily newspaper on the same day. The plaintiff, the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition), considered such an advertising letter to be unreasonable harassment under § 7 UWG during the first four weeks after the death. It demanded that the defendant cease the advertising and reimburse its warning costs.
The lower courts allowed the action with the proviso that the letters could not be sent within three weeks (Regional Court) or two weeks (Higher Regional Court) after the death. Otherwise, there would be unreasonable harassment.
With its appeal, the plaintiff sought the restoration of the judgement of the Regional Court. The defendant had accepted the judgement of the court of appeal.
The appeal was unsuccessful. The Federal Supreme Court agreed with the lower courts that the entrepreneur had to observe a certain waiting period from the time of death. However, it assumed that a period of two weeks, as deemed appropriate by the Court of Appeal, was not objectionable on legal grounds.
Judgment of the Federal Supreme Court of 22 April 2010 - I ZR 29/09
Lower courts:
LG Gießen - Judgment of 3 April 2008 - 8 O 3/08
OLG Frankfurt a. M. - Judgment of 21 January 2009 - 6 U 90/08
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
