In its judgement of 30 March 2023, the Higher Regional Court of Hamm ruled that there is a violation of the general (corporate) right of personality if a company uses images for advertising purposes on which an aircraft is depicted whose owner is clearly identifiable due to the recognisable aircraft registration number (possibly in conjunction with the colouring). In the event that the photographs are used without the corresponding consent of the company concerned, the company’s right to decide for itself whether and under which conditions the name of the company is made available to others for advertising purposes is violated (OLG Hamm, judgement of 30.3.2023, ref.: 4 U 130/21)
http://www.justiz.nrw.de/nrwe/olgs/hamm/j2023/4_U_130_21_Urteil_20230330.html
Background
In July 2017, during a driving event at the airport C in Baden-Württemberg, on the occasion of the presentation of the model-maintained passenger car series of the “*-Class” to journalists, the defendant had, inter alia, the three photographs in dispute produced, on each of which a vehicle of the D-“*-Class” is depicted in the foreground from different perspectives. Immediately behind the car, an aircraft can be seen, which was parked at the airfield at that time. The aircraft registration B-# is attached to the tail of the aircraft. The aircraft is painted white in the area of the nose and blue in the area of the tail, with the separation of the two colours running diagonally approximately across the middle of the aircraft fuselage, itself painted gold. The plaintiff, who claims to be the owner of the aircraft, is identifiable as its keeper by means of the above-described paintwork and the aircraft registration number via publicly accessible internet sites. The defendant made the recordings available for download on the internet in 2018. In doing so, they became part of two different video clips that could be accessed via the “YouTube” platform, among other things as a sequence of individual photographs. According to the plaintiff, the defendant had violated her (corporate) right of personality and her right to a name through the unauthorised publication of the recordings. The plaintiff based this on the fact that on the left side of the aircraft, directly next to the door, there was a coat of arms with the lettering “E”, the surname of its managing director, underneath, which could also be seen in the disputed recordings. The plaintiff was contractually entitled to use this coat of arms. Since the sequence of letters “FGE” were the initials of her managing director (“F G E”), the aircraft registration number B-# was a “desired registration number”. Due to the plaintiff’s identifiability, a relevant part of the relevant buying public could get the wrong impression that a contractual relationship existed between the plaintiff and the defendant, e.g. in the sense of a sponsoring relationship.
The decision of the OLG Hamm
In its decision, the OLG Hamm came to the conclusion that the defendant had violated the plaintiff’s general corporate personality right by using the photographs in dispute for advertising purposes without the plaintiff’s consent. In this respect, the plaintiff was entitled to injunctive relief under § 823 para. 1, § 1004 para. 1 sentence 2 BGB analogously in conjunction with Art. 1 para. 1, Art. 2 para. 1, Art. 12, Art. 19 para. 3 GG.
The right of personality of the enterprise protected the right to privacy guaranteed by Article 2.1 in conjunction with Article 19.3 of the Basic Law. The corporate personality right protects the social claim to validity of corporations as commercial enterprises, which is guaranteed by Art. 2 para. 1 in conjunction with Art. 19 para. 3 GG, Art. 8 para. 1 ECHR (cf. BGH, judgement of 14.1.2020 – VI ZR 496/18, GRUR 2020, 435, marginal no. 34, cited in juris). According to the Higher Regional Court of Hamm, this was affected in the present case because (also) the right to corporate personality granted the entitled person general protection against interventions by third parties affecting the person or the company as such. For this reason, it is up to him or the company alone to decide whether and under what conditions its name appears in public. It would not be consistent with this if the holder of the right had to tolerate that his name, which he himself uses in business dealings for advertising purposes, was used for third-party advertising without being asked or even against his will. It is in the nature of the right to a name as a right of personality to allow the right holder to decide for himself whether and under what conditions his name is available for advertising purposes of others (see BGH, judgement of 26.6.1981 – I ZR 73/79, GRUR 1981, 846, marginal no. 14 et seqq. – L, Rennsport-Gemeinschaft, cited in juris). The plaintiff was clearly identifiable as the owner of the aircraft depicted in the photographs, at least via the easily recognisable aircraft registration number, by means of publicly accessible sources on the internet. In the opinion of the Higher Regional Court of Hamm, such identifiability was sufficient to affect the scope of protection of the corporate personality right. Although in the present case “only” or primarily an identification by means of the aircraft registration number was possible, this was no longer a significant hurdle in the age of the internet. As a result, according to the Higher Regional Court of Hamm, such a case was not to be assessed differently than if the name or the company of the plaintiff were legibly depicted on the aircraft fuselage (cf. BGH, judgement of 26 June 1981 – I ZR 73/79, GRUR 1981, 846, marginal no. 14, etc.). – L, Rennsport-Gemeinschaft).
In the opinion of the OLG Hamm, the question of whether the advertising at issue was capable of having a negative effect on the plaintiff’s business reputation in public was irrelevant. The name of another person, which the latter uses for advertising purposes in business dealings, was to be protected against unauthorised exploitation for the benefit of another person’s business interests even if the use of the name was not associated with a diminution of the reputation and standing of the person entitled. For in the area of protection of likeness under §§ 22 and 23 KUG, it was settled case-law that it must be left to the free decision of the individual whether to make his or her image available as an inducement to sell goods. The protected legal interest which is encroached upon by the unauthorised publication of portraits for the purpose of advertising goods or commercial services is the free decision of the person portrayed alone – as a natural consequence of the right of personality – as to whether and in what way he or she wishes to make his or her image available for the business interests of third parties. In this respect, it was not a question of a value judgement on the sense and expediency of an advertisement as such and it was also irrelevant whether the advertisement was in principle neither offensive nor objectionable for other reasons. Nothing else could apply to the protection against an unauthorised use of a name in advertising which was not justified by interests worthy of recognition (cf. BGH, judgement of 26.6.1981 – I ZR 73/79, GRUR 1981, 846, marginal no. 13 et seqq. – L, Rennsport-Gemeinschaft, cited in juris).