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Impeding the freedom of action of competitors is anticompetitive. However, this impeding must be deliberate, which requires an assessment based on the occasion, purpose, content and effect of the advertising measure. Merely typical competitive impeding is not unfair, but must be accepted as a consequence of free competition.

A well-known drugstore chain advertised the redemption of discount vouchers from various competitors and used the following text for this purpose: "You can now redeem 10% discount coupons from dm, Rossmann and Douglas here in your Müller branch". By doing so, Müller has effectively appropriated the corresponding advertising campaigns of its competitors without significant expense in order to attract customers to its own stores. A trade association opposes this with the argument that this form of advertising constitutes anticompetitive impeding. Müller defends itself with the argument that it was exclusively about attracting customers to its own stores. Impeding the competitors, by contrast, was not intended.

The court's decision

The Regional Court (LG) Ulm rejected a claim for an injunction by judgment of 20.11.2014 (Az. 11 O 36/14). The court recognized that the scope for action of the affected competitors is significantly impaired by the advertising. Nevertheless, the court denied the intensity of the measure required for deliberate impeding. When considering all circumstances, it must be ascertainable that the advertising primarily serves to prevent the competitive development of the competitors in order for impeding to be anticompetitive. Such an objective exists only if the aim is to eliminate the competitors or to ensure that they can no longer adequately assert their performance through their own efforts. These prerequisites are not satisfied here because it is evident that the Müller chain was concerned with promoting its own competitive development. The impeding of the competitors' freedom of action is merely an immanent competitive consequence of this objective and must therefore be accepted.

Conclusion

With this judgment, the court follows the established case law of the Federal Court of Justice (BGH), according to which penetrating into the customer base of competitors and soliciting customers as such is not anticompetitive and therefore does not constitute impeding. A limit is only reached where an advertising measure can or should lead to a change of a purchase decision that has already been made. This is obviously not the case here because the customer is merely shown an alternative.