In competition law, one often has to raise the question, whether actions / events at international trade fairs are directed at the German market or at least evoke the risk of an imminent infringement in Germany. These questions may also be relevant for the international competence of German courts.
The decision of the OLG Frankfurt a. M. was based on the following facts:
The plaintiff and the defendant both manufacture and distribute bags and trolleys. The defendant has its registered office outside of Germany. At its booth at an international trade fair held in Germany, the defendant advertised a cabin trolley as being the “world’s lightest“. However, undisputedly there are lighter competing products on the market. The defendant does not offer the cabin trolley in dispute in Germany.
The plaintiff requested that the defendant be prohibited from advertising the cabin trolley as “world’s lightest” in Germany.
The Higher Regional Court of Frankfurt a. M. affirmed the international competence of German courts in accordance with Art. 7 No. 2 Bruxelles I-Directive. In the opinion of the court, an exhibition at a trade fair, as a rule, shall, have an intended effect at least on the respective country in which the fair is held; irrespective of whether it is a consumer fair or an international trade fair. Whether an infringement actually occurred in Germany is a so called double relevant fact and thus has to be assumed in the context of the jurisdictional test (paras. 21 and 22 of the decision).
Since the plaintiff only attacked the defendant’s “advertising” in Germany (and not other subsequent acts such as “offering” or “selling”) and since there was indisputably such advertising by the exhibition at the fair, the court argued that there was a risk of repetition of the infringing advertisement in Germany.
Further, there was also a sufficient connection of the challenged act to the German market, even though the defendant did not offer the advertised products in Germany. In the eyes of the court, there remains a possibility that third-party traders may offer the defendant’s products in Germany to retailers in Germany who have previously seen the defendant’s trade fair stand. In those circumstances, misleading advertising at the trade fair could also influence a domestic purchase decision (of the retailers in Germany) (paragraph 39).
The decision of the OLG Frankfurt a.M. shows that the wording of an injunction request is decisive for the successful enforcement of a claim in competition law. In the prior judgements “Pralinenform II” (GRUR 2010, 1103), “Keksstangen” (GRUR 2015, 603) and “Mart-Stam-Stuhl” (GRUR 2017, 793), the German Federal Court of Justice (BGH) ruled that exhibiting a product at an international trade fair (held in Germany) would not automatically constitute (the risk of) an “offering” to consumers in Germany.
In the “Pralinenform II” decision, the BGH, however, also stated that exhibiting a product at a trade fair could, generally constitute an “advertising” of the product (in Germany). However, in that case the plaintiff had not requested that the “advertising” be omitted. Rather, the request was aimed at prohibiting the defendant from “offering” the product. Since the BGH held that there was no “offering”, the claim had to be dismissed.
In the decision “Industrienähmaschinen” (GRUR 2019, 196), the BGH affirmed an “offering” when exhibiting a product because an employee of the defendant had, upon request, declared at the trade fair that the product could also be delivered to Germany. If, however, there is no proof for an “offering” in Germany, the injunction request should be limited – as in the OLG Frankfurt a.M. case – to refrain from “advertising”, only.
