Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17006/90

by K.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 May 1990

by K. against the Federal Republic of Germany and registered

on 9 August 1990 under file No. 17006/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a German citizen born in 1946, runs a dance

school in Ludwigshafen. He is represented by Mr. Ludwig Ose, a lawyer

in Ludwigshafen.

On 18 May 1989 the Frankenthal Regional Court (Landgericht)

gave judgment against the applicant at the request of a competitor

ordering the applicant to no longer use the slogan "Die

Ludwigshafener Tanzschule" ("The Dance School of Ludwigshafen)" in

his publicity. In the opinion of the Court the use of the article

"die" ("the") in the slogan was misleading. Firstly, it gave the

impression that there was only one dance school in Ludwigshafen, and

it could convey the idea that the applicant's school was of particular

importance and quality. The applicant had, however, not offered any

proof to that effect.

The applicant's appeal (Berufung) was rejected by the Court of

Appeal (Oberlandesgericht) in Zweibrücken on 9 August 1989.

A constitutional complaint (Verfassungsbeschwerde) was

rejected on 6 November 1989 by a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) partly as being

inadmissible and partly as offering no prospects of success. The

Court states in its decision that the ordinary court's findings as to

how the applicant's advertisement could be understood by the reader

were not objectionable. Furthermore there was no violation

of the principle of proportionality as the applicant remained free to

advertise his school in various other ways without using terms that

were likely to convey a misleading idea. The right to freedom of

expression was also not violated as the interference complained of was

based on a statutory provision (Sec. 3 of the Unfair Competition Act

(Gesetz gegen unlauteren Wettbewerb, UWG)) and served the protection

of consumers against misleading publicity. In a case where

information served the sole purpose of passing a commercial message

to prospective customers, the statutory provisions on unfair

competition prevailed over the right to freedom of expression.

COMPLAINTS

The applicant considers that the German courts misinterpreted

the publicity slogan used by him. He states that publicity slogans

similar to the one objected to by the German courts in his case were

currently in use. For that reason, and also in view of the fact that

his competitor's publicity was likewise objectionable, there had been

no necessity for the judgment against him. The applicant alleges a

violation of Article 10 of the Convention.

THE LAW

The applicant, who was forbidden by the competent national

courts to use the slogan "The Dance School of Ludwigshafen" in his

publicity, complains of an interference with his right to impart

information as guaranteed under Article 10 (Art. 10) of the Convention.

Article 10 para. 1 (Art. 10-1) provides:

"Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. ..."

However, interferences with this right are compatible with the

Convention when they fulfil the requirements of paragraph 2 of

Article 10 (Art. 10-2) which provides:

"2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

..., for the protection of the reputation or rights of others,

... ."

The Commission first considers that there has been an

interference with the applicant's right under Article 10 (Art. 10).

As to the requirements set out in paragraph 2, the applicant

does not dispute that the interference complained of is based on

domestic law and serves the purpose of protecting the rights of

others. The Commission notes in this context that the aim of the

Unfair Competition Act is the protection of the rights of business

firms against unfair practices by competitors and also the protection

of the rights of consumers. This is a legitimate aim under Article 10

para. 2 (Art. 10-2) which refers to the protection of the rights of

others in a democratic society (No. 7805/77, Dec. 5.5.79, D.R. 16 p.

68 [73]).

The applicant mainly disputes the necessity and

proportionality of the measure in question, alleging that slogans

similar to the one objected to by the German courts in his case are

currently in use in commercial advertisements. Further he submits

that the publicity of his competitor, who obtained the judgment of

18 May 1989 against him, is at least as objectionable as his own.

According to the case-law of the European Court of Human

Rights the Contracting States have a certain margin of appreciation in

assessing the existence and extent of the necessity of an interference.

Such a margin is, according to the Court, essential in commercial

matters and in particular in the area of unfair competition. The

supervision by the Convention organs in this respect is therefore

limited to the question whether the measures taken at national level

are justifiable in principle and proportionate (Eur. Court H.R.,

Markt Intern judgment of 20 November 1989, Series A no. 165, at p. 20,

para. 33). In order to establish whether the interference complained

of was proportionate it is necessary to weigh the requirements of the

protection of the rights of others against the publication of the

information in question. The Commission must look at the infringed

court decisions in the light of the case as a whole (Markt Intern

judgment, loc. cit., para. 34).

In the present case the national courts found that the slogan

used by the applicant in his publicity was misleading. Its

formulation conveyed the impression that the applicant's dance school

was of particular importance. The Federal Constitutional Court,

weighing the requirements for the protection of the rights of others

in the area of commercial competition against the publication of the

applicant's commercial message, denied a violation of the principle of

proportionality.

In these circumstances it cannot be found that the decisions

of the civil courts in the present case, confirmed from the

constitutional point of view by the Federal Constitutional Court, went

beyond the margin of appreciation left to the national authorities.

The Commission therefore concludes that there is no appearance

of a violation of Article 10 (Art. 10) and the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. GERMANY

K. v. GERMANY

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