Missing information in the imprint - minor violation?

The Regional Court (LG) Berlin was presented with a claim following a cease-and-desist letter issued under competition law, which concerned the question of the extent to which missing information in the imprint of an online platform constitutes minor violations (Bagatell-Verstöße) which may not be subject to a costly cease-and-desist letter.

The operator of an online platform for motor vehicles failed to provide information in the imprint on her website regarding the commercial register and the commercial register number, as well as her VAT identification number. This was subject to a costly cease-and-desist letter by a competitor. While the online merchant issued a cease-and-desist declaration subject to penalty, she refused to reimburse the competitor for the costs of the cease-and-desist letter, as in her view the cease-and-desist letter constituted an abuse of rights. The competitor then filed an action with the Regional Court (LG) Berlin for reimbursement of the cease-and-desist costs.

Court's decision
Byjudgment of 31.08.2010 – Az. 103 O 34/10 the Regional Court (LG) Berlin rejected the competitor's claim, holding that whilst the absence of the commercial register, the commercial register number and the VAT identification number in the imprint of an online shop constitutes unfair competition, in the court's view it falls within the scope of minor violations (Bagatell-Verstöße) which are not subject to cease-and-desist action.

According to the Act Against Unfair Competition (UWG), only such unfair commercial practices are prohibited which are capable of appreciably impairing the interests of competitors, consumers or other market participants. This was not the case here, as the missing information was not capable of appreciably impairing the interests of consumers, namely their ability to make decisions based on information.

The purpose and object of the information to be published is to enable the consumer to assert rights. For this purpose, he requires neither the specification of the commercial register and registration number nor, certainly not, the VAT identification number which serves only the tax authorities. Likewise, for the decision whether the consumer wishes to enter into business dealings with the defendant at all, these particulars are irrelevant.
The court therefore did not need to examine whether the cease-and-desist letter constituted an abuse of rights.

Conclusion

The Regional Court (LG) Berlin thus decided contrary to other judgments which have already been issued, including those of higher courts. Most recently, the Higher Regional Court (OLG) Hamm decided in its judgment of 02.04.2009 – Az. 4 U 213/08, that the absence of the VAT identification number is not to be regarded as a minor violation.

The Federal Court of Justice (BGH) has likewise already established that the required information obligations also serve consumer protection and the transparency of commercial teleservices. This is also expressly provided for in the UWG.

It therefore seems rather unlikely that a potential appellate proceedings would confirm the result of its Regional Court (LG). It is therefore advisable for every online merchant to absolutely provide the prescribed information in its imprint in order to prevent a cease-and-desist letter from a competitor under competition law.