The prerequisite for a competitor's claim for injunctive relief based on the risk of repetition under competition law is a concrete competitive relationship between the parties involved. But at what point in time must this specific competitive relationship exist? The Higher Regional Court of Frankfurt am Main has commented on this.
A Competitors had initially issued a warning to the operator of an online store for several breaches of competition law and then sued for injunctive relief. The warned party had operated an online store, but had already stopped selling goods at the time of the warning. Instead, a notice was displayed on the warned party's website stating that it would no longer be able to deliver from October 2011, but was working on new products.
The Warning letter had only expanded its product range in October 2012 and included a certain product in its range that had also been sold by the defendant until the end of September 2011.
Decision of the court
With Judgment of 03.07.2014 by the OLG Frankfurt a.M. - Ref.: 6 U 240/13 ruled that it is sufficient for the parties to be in a concrete competitive relationship with each other at the time of the last oral hearing in order to be entitled to assert a claim for injunctive relief under competition law based on the risk of repetition; it is not necessary for the competitive relationship to have already existed at the time of the act of infringement giving rise to the risk of repetition.
The fact that the warning party was not yet a competitor of the warned party at the time of the infringement giving rise to the risk of repetition (until September 30, 2011), but only started trading in the specific product in October 2012, does not prevent the assumption of the specific competitive relationship required for legitimacy to take action.
Since the injunctive relief is solely aimed at preventing certain conduct in the future, it is - according to the court - necessary, but also sufficient, for the right to sue that the injunction creditor has a concrete competitive relationship with the injunction debtor at the time of the future threatened infringement. This is the case here if - which must be assumed due to the continued risk of repetition - the party receiving the warning should again make the offers prohibited by the contested judgment in the future.
The OLG Frankfurt a.M. was also unable to identify any convincing reasons for making the right to sue dependent on a competitive relationship even at the time of the underlying infringing act. For as long as the risk of repetition created by the infringing act continues to exist, a new competitor also has an interest worthy of protection in preventing further acts of infringement with a similar core. According to the OLG, it would also be inconsistent to require the existence of a competitive relationship already at the time of the underlying infringing act in order to assert a claim for injunctive relief based on the risk of repetition, whereas this requirement could not naturally apply to the assertion of a preventive claim for injunctive relief based on the risk of first infringement.
Conclusion
In view of the fact that the question of whether the active legitimation for a claim for injunctive relief under competition law requires a competitive relationship at the time of the infringement is of fundamental importance, the Higher Regional Court of Frankfurt a.M. has allowed an appeal to the Federal Court of Justice. It therefore remains to be seen whether and, if so, how the BGH will rule on this issue.
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