The Higher Regional Court has overruled the Regional Court’s judgement and granted the desired interlocutory injunction.
Under §§ 8(1), (3) no. 1, 3, 4 no. 11 UWG (Act on Unfair Competition) in conjunction with §§ 312c, 355-357 BGB, Art. 240 §§ 1 no. 1, 10 EGBGB (Introductory Act to the German Civil Code) and § 14 BGB-InfoV as well as § 6 no. 1 and 2 TDG respectively § 5(1) no. 1 and 2 ElGVG (Gesetz zur Vereinheitlichung des elektronischen Geschäftsverkehrs – Act on the harmonization of electronic commerce), the plaintiff is entitled to a court order prohibiting the defendant to advertise his auctions on the internet without supplying information about the existence of a right of withdrawal and without providing the identification required under the TDG and ElGVG.
The defendant’s web presences in dispute constitute telecommunications services under the TDG in force until 28 February 2007 (§§ 2(1), (2) TDG and §§ 1, 2 ElGVG coming in force subsequently). Contrary to the legal opinion of the Regional Court, the defendant acted in course of business in the terms of §§ 312b(1), 312c BGB and § 1 BGB-InfoV. According to these provisions, a person acting in the course of a business concluding a distance sale contract (§ 312b(1) BGB) has to provide the information required under Art. 240 EGBGB in conjunction with § 1 BGB-InfoV in a clear and comprehensible manner. This includes the obligation to disclose his identity (§ 1(1) no.1 BGB-InfoV) and the obligation to provide information whether a right of withdrawal or return (§§ 355 et seqq. BGB) exists or not.
The defendant acted in the course of a business in the terms of these provisions. Under § 14(1) BGB, an entrepreneur is a person who, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. Acting in the exercise of a business requires that the person in question autonomously and on a continuing basis offers goods or services against payment on the market. It is, however, not necessary, that the person acts with the intention to generate profit. As far as the Regional Court has held that the low purchase prices realised by the defendant in some auctions indicated that he did not act as a professional, its assessment thus cannot be shared by the senate.
In many cases, it is not easy to decide whether a seller offering goods by means of telecommunication (e. g. via internet market places) is trading purposefully and on a continuing basis or simply sells private articles of daily use as a consumer. In the process of determining whether a seller in acting in the course of a business the overall circumstances of the particular case have to be taken into account. If the seller is registered with an internet market place as a so-called “power-seller”, the burden of proof is – to the advantage of the buyer or competitor - reversed to the effect that the seller has to prove that he did not act in the course of a business in the terms of § 14 BGB. The defendant undisputedly was not registered as a “power-seller”, meaning that he did not officially belong to the small group of vendors generating a certain minimum income or selling a certain number of goods per month, but registered as a private seller. However, this does not automatically exempt him from being an entrepreneur under § 14 BGB. The number and frequency of the auctions held by the defendant, taking into account the goods sold as well as the generated income, the seller’s web presence, the use of advertisements creating a professional impression and the manner the internet shop is run all can act as circumstantial evidence for the fact that the seller is acting as an entrepreneur. The number of auctions or the seller’s feedback each for themselves are, however, no reliable circumstantial evidence for the seller being an entrepreneur. The requirement for acting in the course of business always is that the person’s activity is methodically focused on the conclusion of a multitude of transactions on a continuing basis.
The plaintiff has credibly shown facts which indicate that the defendant is an entrepreneur in the terms of § 14 BGB. Between 17 August and 10 September 2006, the seller has put up 42 items for auction. The items were predominantly (new and second-hand) cell phones, but also included new and second-hand bicycles and a second-hand car. The prices diverged between EUR 1 (for an “old racing bike”) and EUR 449 (for a second-hand “VW Passat Variant”). According to the lists presented by the plaintiff, which were posted on the internet by the defendant, the defendant had multiple items of each of the offered cell phones in stock. A screenshot of the defendant’s web profile of 15 October 2006 made by the plaintiff shows that the defendant has received feedback from 308 other members since he had registered on the platform. The overall design of his web presence (on which “shipping to Germany, Austria and Switzerland” is offered) creates the impression of him being a professional dealer.