The Düsseldorf Regional Court has ruled that, under certain circumstances, an insurance broker must accept being attributed with the unfair conduct of an advertising agency commissioned by him (judgement of 16 June 2021, 12 O 10/21).
An insurance broker had commissioned an advertising agency to advertise some of his products and services by e-mail. The applicant in the subsequent court proceedings, another insurance broker, had downloaded a sales contract from the advertising agency's homepage. In the course of the download process, the advertising agency received the applicant's e-mail address and subsequently sent her advertising for the products of the commissioning insurance broker.
The applicant considered the advertising to be an unreasonable nuisance, whereupon she sued both the advertising agency and the insurance broker for injunctive relief pursuant to Secs. 7 and 8 German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG).
The Regional Court ordered the insurance broker and the advertising agency to forbear from mailing the advertisements. It established that the competitive relationship required for injunctive relief existed between the applicant and the insurance broker, as well as between the applicant and the advertising agency. The sending of the advertisements by the agency could be attributed to the insurance broker pursuant to Sec. 8 (2) UWG.
In line with supreme court case law, the court pointed out that an agent within the meaning of the provision is someone who, without being an employee, works for the company of another on the basis of a contractual or other legal relationship, whereby he is integrated into the company organisation in such a way that the success of his action at least also benefits the owner of the company and the owner of the company is definitely granted a determining and enforceable influence over the offending activity. The insurance broker objected to this, saying that he had had no knowledge of the advertising agency’s sending of the advertisements to the applicant. However, the court deemed this argument to be irrelevant: Whether the company owner actually makes use of the possibility to exert influence is not decisive. It suffices for the attribution that the owner of the company could and should have secured the determining influence. The general commissioning of the agency and the use of its address lists meant that a possibility of exerting influence had existed.
The Düsseldorf Regional Court established the relevant competitive relationship between the advertising agency and the applicant under the aspect of the promotion of third-party sales by means of sending the advertising.
Insurance brokers should be aware that even outsourcing marketing activities to third parties does not protect them against attribution under competition law. It makes sense for them to regularly review their contractual partners’ compliance with competition law in order to protect themselves against unpleasant surprises.