OLG Frankfurt Ruling: Identical Infringements in Marketing

As a lawyer specializing in IT and media law, I want to highlight a recent ruling by the Higher Regional Court of Frankfurt am Main. This decision holds significant importance for the marketing industry, particularly regarding identical infringements in cease-and-desist declarations. This topic often creates uncertainty in online marketing practices.

The Case Before the Frankfurt Regional Court

The original proceedings concerned advertising for hearing aids. The Frankfurt Regional Court had ordered the defendant company to refrain from advertising with certain formulations. Specifically, the following statements were prohibited:

“Secure your health insurance contribution now!”
“Request your health insurance contribution directly here!”
“Secure your health insurance contribution for the best hearing quickly here”

The Regional Court found these advertising statements misleading under Section 5 para. 1, paragraph 2 No. 1 UWG. They were likely to mislead the target audience into believing that health insurance could be settled when purchasing a hearing system, even if the process was entirely online.

The New Advertising and Regulatory Procedure

The company subsequently used a modified formulation in its advertising. It now advertised “Get a subsidy of up to 1,690 euros” and explained that health insurance companies “can” pay up to this amount for the purchase and servicing of hearing aids.

The Frankfurt Regional Court dismissed the application for the imposition of a fine by order dated 27.03.2024. It did not consider the new wording to be a material breach. The judges justified this by stating that the original statement contained an active call to action, whereas the new wording was merely informative in nature.

The OLG Frankfurt's Decision on Identical Infringements

The Frankfurt Higher Regional Court confirmed the Regional Court's decision. It ruled that the new advertising no longer constituted a core infringement of the injunction. The Higher Regional Court emphasized that the decisive factor was whether the new formulation had already been, at least implicitly, the subject of the original discovery proceedings.

The court found that the new advertising differed significantly both in terms of wording and content from the originally prohibited statements. Therefore, it could not be assumed that these had already been taken into account in the original proceedings.

Significance for Marketing Agencies: Avoiding Identical Infringements

This decision is highly relevant for marketing agencies. It demonstrates that nuances can play a crucial role in assessing similar infringements. Not every similar formulation is automatically considered a new infringement.

For marketing agencies, this implies that while carefulness is required following a cease-and-desist letter or court prohibition, there remains scope for creative solutions. It is crucial for agencies to carefully analyze and understand the core message of the original prohibition.

When developing new advertising strategies, agencies must avoid the problematic core of the original message. They should aim to convey the desired message in a new, legally unobjectionable way. This requires careful consideration and often legal expertise.

Conclusion

The judgment of the Higher Regional Court of Frankfurt indicates that there is indeed room for interpretation regarding identical infringements. For marketing agencies, this presents both an opportunity to design effective advertising even after cease-and-desist declarations and a reminder to approach such issues with utmost care and legal expertise.

Careful consideration and, if in doubt, professional legal advice can protect against costly mistakes. Ultimately, assessing whether a hardcore infringement exists remains a case-by-case determination that always demands careful review.