Unfair Commercial Practices Directive, Chapter 2, Article 5, 4. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

Misconceptions, which are based on the fact that consumers are still not used to the fact that a service is not only offered by a former monopolist but also by competitors, do not constitute an unfair commercial practice on behalf of the competitor.

The defendant, an operator of a letter delivery service, installed 52 red mailboxes in the city of Nuernberg. The mailboxes had a similar form to the mailboxes of the plaintiff and carried the inscription "Brief24" (Letter24).

Up to 1998 the only letter delivery service was the German Federal Post (Deutsche Bundespost) due to a state monopoly. The mailboxes of the privately owned company "Deutsche Post AG" - which emerged from the Deutsche Bundespost through privatization - are yellow.

In the past, letters which should have been delivered by the plaintiff have been inserted into the defendant's mailboxes which resulted in a delay of two to four days. The red mailboxes of the defendant were regularly installed close to the yellow mailboxes of the plaintiff.

The plaintiff requested the defendant  to cease-and-desist from installing its mailboxes close to the ones of the plaintiff.

In its reasoning, the court established that the above mentioned misconceptions are not able to constitute a violation of § 5 UWG. Due to the different colour, an average consumer will recognize that the red mailboxes of the defendant are not mailboxes of the plaintiff (Deutsche Post AG).

The fact that the defendant´s red mailboxes are near the yellow mailboxes of the defendant, does not constitute a violation on unfair commercial practices. An average consumer will expect that mailboxes of competitors are located in the same area.

The court concluded that the defendant did not engage in an unfair commercial practice.

Are misconceptions, which are based on the fact that consumers are still not used to the fact that a service is not only offered by a former monopolist but also by competitors, able to constitute an unfair commercial practice?

 

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The plaintiff´s request was denied.