Advertising ban on mailboxes – does it also apply to advertising sheets with editorial content?

The Higher Regional Court (OLG) Hamm had to decide whether advertising sheets and advertising inserts in newspapers may be inserted into mailboxes when these are marked with a notice "No Advertising".

In the present dispute, a distribution company for commercial prospectus advertising in the Münsterland region sought to obtain a ruling that the publisher of a free advertising sheet should likewise observe the advertising ban often placed on mailboxes and should refrain from distributing its advertising sheet in mailboxes bearing corresponding stickers.

The publisher, by contrast, argued that the stickers do not apply to free newspapers with editorial content. After the distribution company unsuccessfully sent a cease-and-desist letter to its competitor, it brought an action against the publisher of the advertising sheet.

Court decision

The OLG Hamm decided by Judgment of 14.07.2011 – Az. 4 U 42/11, that the distribution of free advertising sheets and newspapers with inserted advertising prospectuses in mailboxes bearing the sticker "No Advertising" did not constitute a breach of competition law against distributors of commercial prospectus advertising.

Expressions of objection relating to advertising prospectuses should not be interpreted as meaning that the consumers concerned would also find advertising sheets with editorial content undesirable as such. In the court's view, consumers distinguish between pure advertising prospectuses and free newspapers with advertising inserts. In the case of regional advertising sheets, consumers are also interested in the editorial part of the newspaper with its local information. Therefore, these advertising sheets are not covered by the sticker "No Advertising".

Advertising through newspaper inserts, which are regularly associated with subscription to newspapers and magazines, is likewise not covered by the blocking notice.

Conclusion

Anyone who wishes to ensure that, in addition to pure advertising prospectuses, advertising sheets also do not land in their mailbox should expand the notice "No Advertising". With the notice "No Advertising or Free Newspapers", advertising sheets would also be covered by the prohibition on insertion. In that case, the interpretation of the consumer's wishes would be unambiguous, so that competitors could assert cessation for breach of competition law, and consumers could assert cessation for infringement of their right of personality against the advertiser.