Display of a indexed video game on eBay – breach of competition law?

If a video game is classified as harmful to youth, it is included in the list of youth-harmful media. Is there a breach of competition law if the packaging of such an indexed game is displayed as part of an offer on eBay, even though a non-indexed version is actually being offered for sale? The Regional Court (LG) Wuppertal says yes.

Both parties each distribute computer and console games commercially via the Internet on eBay.

The respondent offered a game displaying the packaging of the game 'Conflict Denied Ops' in the EU version. This version is listed in the list of youth-harmful media. In the product description for this offer, inter alia, 'USK rating: USK from 18', 'Language: German, multilingual' was listed. The offer was also accessible to children and young people.

The competitor saw this as a breach of competition law and applied for the issuance of an interim injunction. This was granted. The respondent was prohibited from publishing sales offers for indexed computer and/or console games on the Internet in business dealings for competitive purposes in such a way that they could be viewed by children or young people.

Against this, the respondent filed an objection – without success.

The court's decision

By means ofJudgment of 19.05.2017 – Az. 12 O 22/17the Regional Court (LG) Wuppertal upheld the interim injunction.

The court found a breach of the Youth Protection Act (JuSchG). According to this, storage media whose inclusion in the list of youth-harmful media has been published must not be made accessible at a location that is accessible to or can be viewed by children or young people. The respondent published the packaging of the game of the indexed EU version as part of a sales offer on eBay in such a way that it was also accessible to children and young people.

According to the judges' assessment, it is irrelevant which version of the game is described in the offer and whether this game or the non-indexed German version would actually have been sent. The regulation in the JuSchG is intended to prevent children and young people from becoming aware of the existence of youth-harmful media at all.

Conclusion

Even if a non-indexed version of a computer/console game is sold, displaying the packaging of an indexed game on eBay is contrary to competition law if the offer is also accessible to children and young people.