A disability is better than no advertising at all

A creative alternative to the boring 'Please do not distribute advertising' stickers was devised by the publisher of a local newspaper, and they promptly supplemented the request with an exception, namely for their own newspaper. The stickers designed in this way were then distributed to households. At the instigation of another newspaper, the OLG Brandenburg now had to decide whether this was permissible or whether it might instead constitute unlawful restraint of competition.

Specifically, the following text was printed on the sticker: 'Please do not distribute individual advertising brochures and free newspapers. Only […].' The exception was to apply – naturally – to the disinterested distributor of the notice sticker. A competitor perceived therein an unlawful restraint of competition and demanded that the distribution of the sticker be ceased.

The court's decision

The OLG Brandenburg granted this request – as did the court of first instance – by judgment of 22.12.2014 (Az. 6 U 142/13). The basis for this was the court's finding that the distribution of the stickers constitutes a restraint of competition against competitors. This is the case whenever a competitor can no longer bring their services to market in an adequate manner through their own efforts. In the court's view, these requirements were met here because the impairment of other advertisers was not merely a consequence but rather the deliberate intent or purpose of the conduct. They were to be excluded from participation in competition based on performance, because the use of the stickers created a barrier to competitor products. The placement of advertising brochures at suitable locations (e.g. cafés or petrol stations) does not present a realistic alternative.

The fact that the distributor of the stickers enlisted the consumer to their cause, and that the consumer makes an autonomous decision whether to affix the sticker or not, changes this assessment no more, according to the court's reasoning, than the question of the numbers in which this occurs. On the one hand, suitability of the conduct to restrain competition is sufficient for the prohibition, and on the other hand, it does not serve to persuade consumers of one's own services but rather to exclude competitor services. This is not a means of fair competition based on performance.

Conclusion

The judgment essentially aligns with the case law on similar cases. Nevertheless, one might consider whether there is any suitability to restrain competition in these cases at all. The person who affixes the sticker thereby expresses a particular intention. The sticker merely facilitates the expression of this intention for them. By contrast, it is scarcely conceivable that someone would use the sticker out of mere convenience or allow the printed intention to be forced upon them.