The following decision relates to a very unfair competition Abmahnserie the now defunct webdiscount4you.ltd. This, we showed in the autumn of 2008 Abmahnverhalten quite abusive. finally decided on this the LG Würzburg 21.10.2008 (file number 14 O 1631/08) has. This decision used to be a great success, because at this moment no decisions were due to abuse of rights. The approach of the opposing attorney was so conspicuous that our clients here and set to defend against legal costs that could offset the economically powerful Limited, have made directly to the lawyer claimed the Limited. After a long legal dispute until we were finally able to successfully ride the following sentence, with the warning of the limited attorney was sentenced to personally bear the costs. To our knowledge, this was the first decision in which a lawyer has been successfully regress without the procedure was parallel to the warnings party.
Specifically, it is called in this decision:
facts
The class makes MoM. the defendant for reimbursement of pre-trial legal fees due to an intentionally immoral injury claims. The class is in the area of trade in Pet Shops and operates under the company "C" on the Internet as their business is not entitled to deduct Kleinunternehmerin.Der defendant is a consultant from W, which appeared on the Internet. Here, they also offered Pet Supplies on, with prices sometimes inflated to 15 times the normal market price and also some items were faulty was described on the website listed no longer operated in mind that.: "In these pages products and prices shown do not constitute offers, they serve as a showcase to illustrate the functionality of the ePages system." The W was incorporated on 30.5.2008. In a letter v. 9.10.2008 warned the defendant on behalf of the W is the class because of a breach of competition from and demanded the reimbursement of costs incurred for its operations amounting to € 899.40. In a letter v. 9.19.2008 were opposed to the current representative plaintiffs as represented by the class warning. costs incurred for the class amounting to € 899.40, which it now makes MoM. the defendant contends. Overall, warned the defendant for the W into around 20 other companies, and in any event 13 Warnings in the period v. 21.7. until 08.29.2008 and in each case made a claim for reimbursement of attorney, € 899.40 was claimed. Various against other firms from the W trials were conducted from the A AG, whose board sits in the defendant says finanziert.Die class, you would MoM. the defendant's claim for damages from intentional injury according immoral. § 826 BGB. The defendant had cooperated with the W collusive to harm other companies and thereby enrich themselves.
For the reasons
The action is well founded. The class is the alleged damage claim MoM. the defendant made a willfully immoral according injury. § 826 BGB. The notice served on the defendant MoM. The class was very abusive and sittenwidrig.Eine immorality is given if, after their general character, which is to be determined by content, motives and purpose, against the decency of fair and just thinking contrary (Palandt / Sprau, BGB, § 826 para . 4). For the present immorality talks already, that the alleged injunction acc. § § 8 paragraph 1, 3, 4 No. 11 UWG according to § 8 paragraph 4 UWG was quite unfair. The Court concludes that regard, the legal opinions and findings of the LG Marburg in the ruling of 09.09.2008 (ref. 2 O 252/08) and the LG Würzburg, Judgement of 21.10.2008, (ref. 14 O 1631/08 [= MMR 2009, p. 200]) to. An injunction is an abuse of rights whenever go out in all the circumstances of this is that the legal action brought against the competitors are used to make a claim against him for reimbursement of expenses and costs incurred by the prosecution. Such circumstances are regularly present when the players made themselves being marginal, the competitive relationship between the parties, only slightly, the warning inaccurate or incomplete terms of clauses of minor concerns, which are billed to an exaggerated charges in dispute and also many other competitors, which also has only a marginal competitive relationship to be taken in the same way in claim (BGH, Judgement of 5.10.2000, AZ I ZR 237/98). For the abuse of rights in this case the warning says that the client of the defendant even on the market was not active. The website set up by her had several faulty item titles and also a number significantly above the market value prices. Finally, at the website clearly indicated that the rates on your page to see prices to illustrate the function of ... Shop system used. From all this also is clear that in fact a mark of participation is not W is and not intended. In addition, after the establishment of the W on 5/30/2008 abmahnte in this short period of over 20 competitors, while alleged especially in the period 21.7. 29/08/2008 13 warning letters to explain the defendant did. All this suggests that the W in conjunction with its consultant it, namely the defendant solely of efforts to achieve revenue and by warnings in this regard to enrich at the expense of others. After all, the 20 warning letters and the detailed notes of the defendant's costs of € 899.40 each a total of nearly € 18,000 would - cause at the expense of W, which could not pay at all. Consequently, the quantity of the warning was not in proportion the quality of the market participation of W. The targeting of other market participants without any apparent personal interest in the sale of goods is indicated not only the extent of rights in the warning, but also the immorality of Verhaltens.Dabei the court assumes that the W to the collusive defendant has cooperated. The defendant is in itself, as a consultant to be hired by the W. The fact that the W itself exercised no market activity was also aware of the defendant. As CEO of A Ltd and in his capacity as advisor to the W knew he had insight into their business activities and, therefore, that a serious participation in the market should not be. Rather, the defendant intended, by the additional warnings earn money. This was done without their own risk as to the outside as the W-adhesive occurred. It is well known that executions in England not only with increased costs and time are connected, but on a regular basis due to the limited liability of claims for payment of these W MoM. remain unsuccessful. The chosen design could lead to the defendant without its own financial risk and to his warnings and enrichment processes and thus hope to payments by third parties. In that regard, he acted not only with the W together immoral, but also vorsätzlich.Unerheblich is whether the class or its lawyer has acted anti-competitively. Even if this is the case should have been, not the liability of the defendant in the present intentionally immoral injury. Through the deliberate immoral behavior of the defendant joined in the class A damage in the form of pre-litigation attorney's fees incurred.
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