In its judgement of 3 April 2025 – 4 U 29/24, the Court of Appeal ruled that an image campaign by an undertaker with false claims does not exceptionally constitute an infringement of competition law, as it does not already constitute a commercial act within the meaning of the UWG.
What is it about?
A few years ago, a funeral parlour had several posters put up advertising the following claims:
“in Brandenburg it is legal to give the ashes to the custodial relatives”,
“Funeral directors from Berlin can easily travel to Brandenburg to make this possible” and
“Funeral directors in Brandenburg are allowed to release ashes to families”.
As a result of the advertising, the company obtained a temporary injunction from the Berlin Regional Court to refrain from the aforementioned advertising in future. The company’s advertising was misleading, as the Brandenburg Funeral Act (BestG-Bbg) does not in fact authorise the free release of ashes. The objection lodged against this by the funeral parlour before the Berlin Regional Court was unsuccessful.
Reasons for the decision of the Court of Appeal
However, the outcome was ultimately different in the appeal proceedings before the Berlin Court of Appeal (Kammergericht, judgement of 18.2.025 – 5 U 18/24), which overturned the decision of the Berlin Regional Court.
The Regional Court had wrongly assumed that the actions complained of were commercial acts within the meaning of Section 2 (1) No. 2 UWG. A commercial act is any behaviour of a person in favour of their own or another company that is directly and objectively related to the promotion of the sale or purchase of goods or services or to the conclusion or performance of a contract for goods or services. However, if the act primarily serves other objectives and merely has a reflex effect of promoting sales, it is not a commercial act.
In principle, the question of which purpose an act primarily serves is a matter for the individual case. In the context of an overall assessment, it could be an indication of a commercial act if the act complained of deliberately influenced commercial consumer decisions in a misleading manner. For example, if, as here, the impression is created that undertakers are allowed to hand over the ashes of a corpse to relatives, although this is not actually the case.
However, the KG Berlin did not see any influence on the business decisions of consumers. Only the hashtag “DuBistDerBestimmer” was printed on the posters, but the defendant did not identify itself as the author. Consumers were therefore initially only prompted to search for the hashtag on the internet and only came across the defendant’s commercial internet presence after several listings on Google that were not connected to the company.
Consumers would therefore first have to deal with a hashtag and then with various search results. However, it had not been made sufficiently credible that consumers could take a closer look at the funeral parlour and its services.
Conclusion:
The decision strengthens the freedom of expression of companies in accordance with Art. 5 Para. 1 GG. It makes it clear that not every consumer policy statement that indirectly has a positive effect on the image of a company is subject to the strict requirements of the UWG. However, an image campaign conducted in this way remains a balancing act.