The series of decisions on influencer marketing continues and after the Munich Regional Court yesterday, a decision by the Frankfurt Regional Court has now been announced. In both cases, it also revolves around the question of when an influencer has a business act. Only then can the UWG be relevant.
The Frankfurt Regional Court expressly contradicts the Hagen Regional Court, whose judgment I have discussed here.
A commercial act is therefore […] not to be seen solely in the mere linking to websites of third-party trademark owners or companies; […] Rather, further objective circumstances must be added which can no longer be explained by purely private action and therefore suggest that the applicant itself is acting in a commercial capacity.
For this reason, among others, the court refused to issue a preliminary injunction in favor of the Verband Sozialer Wettbewerb in the present case.
However, this is certainly a legal view, which is unlikely to withstand judicial scrutiny. It is true that the examination of whether there is a commercial activity is always a question of individual cases. In the present case, however, the defendant had more than 5,000 followers. However, the Landgericht Frankfurt am Main, in the light of the case-law relating to Ebay and the sale of similar objects, did not want to invoke that circumstance alone. In this respect, the court also tends to err on the fact that payment is required to do business. The will and the intention are already sufficient. Similarly (here) it is often overlooked that even a gain from an act is not a prerequisite for the commercial nature.
However, a front seems to be developing from courts which decide rather restrictively on the question of whether Paragraph 5a(6) of the UWG becomes the new horror of influencers. However, the amount of dishes that influencers take on the candie stake is much larger. Since the VSW is known for taking the proceedings to the Federal Court of Justice, it is to be hoped that there will be clarification at some point. Until then, influencers of all kinds, whether on Twitter, Instagram, YouTube or Twitch, should definitely seek legal advice to reduce the risk of a warning. The VSW and other associations are currently VERY active in this matter.
