The Stuttgart Higher Regional Court has upheld a ruling by the Stuttgart Regional Court ordering the GmbH to provide information about the clothing it sold and stating that the influencer is entitled to a share of sales even after she ceases to be a GmbH managing director.
This is based on the fact that the plaintiff, who was 20 years old at the time, had been active as a “fashion blogger” since 2013 and posted pictures of herself and with clothing items designed by her under her own fashion label on her Instagram account. She achieved a certain degree of fame on Instagram due to the fact that she already had about 50,000 followers at the time, and now has about 900,000. At the end of 2014, the current managing director of the defendant GmbH agreed – without a written statement – to cooperate with the defendant GmbH in such a way that they would jointly sell garments finished with logos in an online store. The plaintiff was to receive a ten percent share of sales.
Subsequently, the payment transactions ran, among other things, via a Paypal account, from which money flowed into an account accessible to the plaintiff. From November 2015, she was the managing director of the defendant, which was initially founded as an entrepreneurial company (UG), and did not receive a salary for this. Rather, it should continue to be entitled to a 10% share of the sales of the products marketed under the “Blackdope” trademark applied for. The sole shareholder of the UG and later GmbH was its current managing director. Following a dispute with the latter, the plaintiff left the GmbH on June 1, 2016. She claims that she was not informed about financial matters during her time as managing director, which is why she is asserting a claim for information and for a declaration that the defendant GmbH must pay her 10% of the net turnover less around €21,000 already paid. The Regional Court of First Instance only partially upheld this claim: Until her departure, the influencer was entitled to a 10% share of the net sales generated with “Blackdope products”; after her departure, she still had a claim reduced to 5% for a 2-year period.
This is confirmed by the Higher Regional Court, which dismisses the defendant’s appeal. Although the parties had not made any contractual provisions for the remuneration of the plaintiff’s management activities at the UG or GmbH, this gap in the provisions was to be filled by a supplementary interpretation of the contract on the basis of the hypothetical intention of the parties. The agreed revenue share had been granted, on the one hand, for the plaintiff’s specific sales-promoting activity, her assistance with the designs and the photos she posted showing the garments, and, on the other hand, with regard to the adoption of the name “Blackdope” used by the plaintiff, as well as with regard to the plaintiff’s sales-promoting positive image and name recognition.
The departure of the plaintiff from the defendant and the associated discontinuation of its support in the distribution of the product would therefore have been taken into account by the parties, had they considered this issue, in such a way that the share of sales to which it was entitled would have been reduced and limited in time in view of the increasing “fading” of the association of the “Blackdope” products with the plaintiff. The Senate therefore agrees with the Regional Court that a reduction of the revenue share by half and a time limit of two years after the Influencer’s departure is appropriate.
In the opinion of the Senate, the fact that the plaintiff even called for a boycott of the products after she left the company does not lead to a lapse of the claim to revenue sharing.
In addition, the commercially inexperienced Influencer is also entitled to information pursuant to Section 242 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), as she was and is unaware of her entitlement to revenue sharing. This claim has not been met to date by the defendant’s blanket statement that in the two-year period following the plaintiff’s departure, gross sales of the products amounted to around €490,000.
The appeal against this decision of the Court of Appeal is admissible.
