The District Court in Hamburg ("the Court") has issued an injunction against Bauer Media Group ("Bauer"), a leading European magazine press group (which publishes over 300 magazine titles in Europe, of which at least 46 are printed for the German market), restraining Bauer from using the logo "Top 100 Titles" on 26 of their magazines. The "Top 100 Titles" refers to the list of the top 100 magazine titles voted for in a German poll. The injunction also covers the manner in which Bauer urges the German regional press wholesalers ("Pressegrossisten") to sell its magazines, by displaying the "Top 100 Titles" in full view when on display. It is argued this gives such magazines a competitive advantage. Bauer is liable for the infringement of the Pressegrossisten, because it called upon the wholesalers to support its "Top 100 Titles" initiative despite being aware of such conduct being anti-competitive.
The Court ruled on an application for an injunction from competing press group Gruner+Jahr, issuing the injunction for two main reasons:
- Firstly, the Court ruled that the logo was misleading according to Art. 5 of the Act Against Unfair Competition ("UWG"), as end consumers could be lead to believe that the logo denoted Bauer as the publisher of all of the "Top 100 Titles", rather than only highlighting that 26 of its titles had been voted as belonging to the top 100 titles in Germany.
- Secondly, the Court ruled that the "Top 100 Titles" initiative infringed Article 20 of the Act Against Restraints of Competition ("GWB") and constituted a violation of the obligation by the Pressegrossisten (who are dominant undertakings in Germany) to treat all competitors on the magazine market equally. Bauer urged the Pressegrossisten to display all those magazines bearing the "Top 100 Titles" logo allowing full view of its entire cover, rather than all those titles which had been voted into the top 100 titles (thereby only including those magazines which participated in the Bauer initiative). Therefore the Court did not see any objective justification for the discriminatory treatment by the Pressegrossisten.
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