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“Influencer II”

Decision of the Federal Supreme Court of Germany (Bundesgerichtshof) 9 September 2021 – Case No. I ZR 125/20

  • Decision • Unfair Competition Law
  • Germany
  • Published:
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  1. (a)

    The provisions of Sec. 6(1) No. 1 Telemedia Act for commercial communication in telemedia, and Sec. 58(1) first sentence Interstate Broadcasting Treaty and Sec. 22(1) first sentence Interstate Media Treaty for advertising in telemedia, are sector-specific provisions concerning market conduct in telemedia. The media law value decisions expressed in these special provisions must not be undermined by the application of the unfair competition law general provision of Sec. 5a(6) Act against Unfair Competition (continuation of decision of the Federal Supreme Court, 24 March 2016 – I ZR 7/15, GRUR 2016, 1068 para. 20 = WRP 2016, 1219 – Textilkennzeichnung).

  2. (b)

    The criterion of financial return provided for in Sec. 6(1) No. 1 Telemedia Act for commercial communication in telemedia and in Sec. 58(1) first sentence Interstate Broadcasting Treaty and Sec. 22(1) first sentence Interstate Media Treaty for advertising in telemedia only applies to promotional practices for the benefit of third parties, but not to self-promotion.

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Act against Unfair Competition, Secs. 2(1) No. 1, 3(1) and (4), 5a(6), 8(1) first sentence and (3) No. 2, No. 11 of the Annex to Sec. 3(3); Telemedia Act, Secs. 1(1) first sentence, 2 first sentence Nos. 1 and 5, 6(1) No. 1; Interstate Broadcasting Treaty, Sec. 58(1) first sentence; Interstate Media Treaty, Sec. 22(1) first sentence

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Translated from the German by David Wright. Official headnotes.

For an English-language translation of the German Federal Supreme Court decision Influencer I, see this issue of IIC at https://doi.org/10.1007/s40319-022-01180-z.

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Act against Unfair Competition, Secs. 2(1) No. 1, 3(1) and (4), 5a(6), 8(1) first sentence and (3) No. 2, No. 11 of the Annex to Sec. 3(3); Telemedia Act, Secs. 1(1) first sentence, 2 first sentence Nos. 1 and 5, 6(1) No. 1; Interstate Broadcasting Treaty, Sec. 58(1) first sentence; Interstate Media Treaty, Sec. 22(1) first sentence. “Influencer II”. IIC 53, 667–678 (2022). https://doi.org/10.1007/s40319-022-01181-y

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  • DOI: https://doi.org/10.1007/s40319-022-01181-y

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