Case law

  • Case Details
    • National ID: 4Ob1/13w
    • Member State: Austria
    • Common Name:Feier der Westbahn
    • Decision type: Supreme court decision
    • Decision date: 12/02/2013
    • Court: Supreme Court (Vienna)
    • Subject:
    • Plaintiff: ÖBB Holding AG or an affiliate
    • Defendant: WESTbahn Management GmbH
    • Keywords: advertisement, competition, rights of the trader
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a)
  • Headnote
    (1) Advertisements by a trader on the premises of a competitor constitute an unfair commercial practice as it violates the infringed competitor's property rights.

    (2) A trader is also liable for breaches committed by its employees and other persons employed for advertisement purposes, even if such persons are used only for a short period of time.

  • Facts
    The plaintiff and the defendant are competitors on the personal transport market on the Austrian western railway line. The plaintiff has raised multiple claims against the defendant due to alleged unfair competition, with the dispute in the case at hand being advertising measures by the defendant in the plaintiff´s trains.

    An employee of the defendant has invited the public via internet for a "Westbahn party" and the defendant offered (and granted) the first 100 arriving participants with start numbers and T-shirts with the defendant's labels. The participants were presented the train fleet of the defendant and were asked to wait for a defendant's train to reach the Western Railway Station. Before the train arrived, the participants waited in the station and also in the trains of the plaintiff, wearing the clothing delivered by the defendant. Furthermore, the plaintiff identified on the following day a number of advertising folders of the defendant in the plaintiff's train.

    Finally, a few weeks later, the plaintiff identified four persons advertising for the defendant (upon the defendant's request) on a bus station and entering a plaintiff's train thereafter, with one person wearing clothes with advertising slogan ("better train service") and the company colors of the defendant.

    According to the first court and the judge in appeal, these practices violated the prohibitions on unfair commercial practices as they infringed the competitor's property right in the advantage of the defendant.

  • Legal issue
    The Supreme Court ruled that actively advertising on a competitor's premises (without the competitor's consent) constitute an act of unfair competition violating the competitor's property rights and granting the infringing competitor an advantage through violation of law.

    According to the Supreme Court, this also applies in the case at hand where the persons actually performing the advertisements were third parties, as these actions are attributable to the defendant pursuant to § 18 Unfair Competition Act. The Court concluded this as the defendant had obviously used these persons for advertising purposes and as the entering of the plaintiff's trains for this advertising campaign could well be expected. Moreover, according to the Court, the defendant was in the position to prevent these parties from undertaken these actions.

    The Supreme Court thereby in principle confirmed the decisions of the first instance judge and the court of appeal.

  • Decision

    (1) Does advertising by a trader on a competitor's premises, constitute an unfair commercial practice?

    (2) Is a trader also liable for breaches committed by its employees and other persons employed for advertisement purposes, if such persons are used only for a short period of time?


    Full text: Full text

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  • Result
    The Supreme Court confirmed the decisions of the lower instance courts ordering the defendant to cease and desist the practice in question.