Schlussbericht über das Projekt: "Wettbewerbsrechtliche ... - vzbv

Wettberbsrechtliche Kontrolle von grenzüberschreitenden 34 Marketingmaßnahmen vzbv 2001
1. Fax advertising
Since the project launch, consumer complaints about unwanted fax advertising from
foreign countries have risen dramatically. According to established court practice,
unwanted fax advertising targeted on private persons without their assent is always
anti-competitive in Germany.
Prosecuting these anti-competitive violations is hard in practice as the original
transmitter identification is always missing on the faxes with the company name plus
address only rarely being indicated. Conclusions as to the sender of unwanted and
illicit advertising can only be drawn from the order fax number indicated for purposes
of ordering.
As in mailed fax advertising the owner of the order fax number is frequently not
identical with the sender of advertising, prosecution also poses problems when the
owner of the order fax number is known. He generally does not disclose the name of
his client to whom he provides this connection. There is no legal claim for obtaining
client data. An increasing number of companies exploit this separation to
systematically shirk their responsibility.
The Federation of German Consumer Organizations therefore switched to claims
against the owner of the order fax number from the aspect of disturber liability. In a
leading case filed in November 2000 before the regional court of Munich, a
corresponding forbearance claim is now to be enforced against those making a fax
number available for the purpose of ordering goods.
2. Slimming advertising
In the project period it was almost exclusively companies located abroad which
conducted misleading slimming advertising by marketing their products with dazzling
names such as "Coffee-Slim“, "Bio-slimming capsules“ or „Hollywoodstar capsules“ in
full-page newspaper adverts.
The fact that those responsible for this advertising disguise their identities also
causes problems in these procedures: the indicated company names are mostly pure
fancy names which are nowhere commercially registered. Addresses are regularly
missing and post-office boxes are indicated at best. The only clue was mostly a
foreign telephone number for ordering with a Call- Center answering which refused to
provide details on the advertising company.
Many cautions therefore come to nothing. The Federation of German Consumer
Organizations therefore shifted to cautioning German publishing houses concerning
their publisher's responsibility. Under this principle forbearance claims can be lodged
against publishing houses if they have committed gross anti-competitive violations
whose prerequisites are clearly and easily discernable. Six German publishing
houses have issued pertinent forbearance declarations in this context.