Düsseldorf Regional Court on Unfair Email Advertising of Brokerage Services – Advertising, Marketing and Branding

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The Düsseldorf Regional Court has ruled that under certain circumstances an insurance broker must agree to be held liable for the unfair behavior of an advertising agency commissioned by him (judgment of June 16, 2021, 12 O 10/21).

An insurance broker had commissioned an advertising agency to advertise some of its products and services via email. The claimant in the subsequent legal proceedings, another insurance broker, had downloaded a sales contract from the advertising agency’s homepage. During the upload process, the advertising agency received the applicant’s e-mail address and subsequently sent her advertising for the products of the commissioned insurance broker.

The petitioner considered the advertisement to be an unreasonable nuisance, whereupon she sued both the advertising agency and the insurance broker for an injunction pursuant to secs. 7 and 8 German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG).

The regional court ordered the insurance broker and the advertising agency to refrain from sending the advertisements. It established that the competitive relationship necessary for the injunction existed between the petitioner and the insurance broker, as well as between the petitioner and the advertising agency. The sending of advertisements by the agency could be attributed to the insurance broker in accordance with art. 8 (2) UWG.

Consistent with Supreme Court case law, the Court emphasized that an agent within the meaning of the provision is a person who, without being an employee, works for the business of another on the basis of a contractual relationship or ‘another legal relationship, by which he is integrated into the organization of the company in such a way that the success of his action benefits at least equally the owner of the company and the owner of the company is definitively granted decisive and opposable influence on the incriminated activity. The insurance broker objected, claiming that he had no knowledge of the advertisements sent by the advertising agency to the claimant. However, the court considered this argument to be irrelevant: whether the business owner actually uses the possibility of exerting influence is not decisive. It is sufficient for the allocation that the owner of the company could and should have ensured decisive influence. The widespread commissioning of the agency and the use of its mailing lists meant that there was an opportunity to exert influence.

The Regional Court of Düsseldorf established the relevant competitive relationship between the advertising agency and the plaintiff in the aspect of the promotion of sales to third parties by means of the sending of advertising.

Insurance brokers should be aware that even outsourcing marketing activities to third parties does not protect them from attribution under competition law. It makes sense for them to regularly check compliance with competition law by their contractual partners in order to guard against unpleasant surprises.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Elna M. Lemons