To the under § 945 ZPO damage for which compensation may include costs, incurred by, that an undertaking to comply with a restraining order recalling products from the channels of.

a) The features and the design of a product are not regularly suitable, to enable a conclusion to its commercial origin, if it is the target public is the final consumer and identical products are sold under various brand manufacturers.

b) To the under § 945 ZPO damage for which compensation may include costs, incurred by, that an undertaking to comply with a restraining order recalling products from the channels of.

JUDGMENT BGH I ZR 109/14 from 19. November 2015 – Hot Sox

UWG § 4 No.. 9; ZPO § 945

a) The features and the design of a product are not regularly suitable, to enable a conclusion to its commercial origin, if it is the target public is the final consumer and identical products are sold under various brand manufacturers.

b) To the under § 945 ZPO damage for which compensation may include costs, incurred by, that an undertaking to comply with a restraining order recalling products from the channels of.

BGH, Judgment of 19. November 2015 – I ZR 109/14 – OLG Oldenburg

LG Osnabrück
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The I. Civil Division of the Federal Court of the oral proceedings-lung 19. November 2015 Presiding Justice Prof. Dr. Büscher, the judges Prof. Dr. Cook, Dr. Löffler, Judge Dr. Schwonke and the Rich-ter Feddersen
hereby:
On appeal by the applicant, the judgment is the 6. Civil Division of the Oberlandesgericht Oldenburg from 29. April 2014 canceled.
The case is for a new hearing and decision, auch über die Kosten der Revision, an das Berufungsgericht zurück-verwiesen.
As of right
Facts:
The Parties shall act with special. Smithkline markets since the year 2004 in Germany slippers among other branded “Hot Sox”. This is to slippers made of fleece material with a filling, which can be heated in the microwave or oven. The slippers sold-who follows the product depositors:
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The defendant provides identical thermal slippers themselves and G over their co-operation enterprise. GmbH (hereinafter: G. ) under other brand names and at different prices on German- rule to market. The applicant offered in November 2010 also heat slippers with the following product to depositors:
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The defendant contends that the applicant Hot Slippers for unfair after-imitations of their product. At their request was issued against the applicant with Be-circuit the Landgericht Hamburg from 7. December 2010 an injunction, refusing the applicant was forbidden under pain of penalties from,
Foot warmer in the form of heat slippers from the tear-resistant, lint-free and flame-retardant material polar fleece, whose front is offset by two verti-cal seams and thereby the front two folds are cast, further enclose the foot and are closed at the heel and serving on a horseshoe-shaped foot opening with elastic and choosing one of the Wärmespei-assurance filled with grains of Appeal in the removable nensohle In-feature, where it is not on-comes to the actual color of the foot warmer, offer in the business for purposes of competition,
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to apply, import and / or place on the market, as next-based play:
The injunction was served on the applicant on the same day. On the contrary the applicant sent a final judicial ruling of the District Court of Hamburg 16. February 2011 canceled.
Am 7. December 2010 obtained the defendant, Having regard to a her zuste-metabolizing right to a photograph, on the applicant an injunction Availability checked-tion of the Landgericht Oldenburg, refusing the applicant was prohibited, to use on their above appears, product inserts the top left photo shown.
In the present case, the applicant makes a claim for damages due to execution of the 7. December 2010 issued, no later th again repealed injunction from the Landgericht Hamburg contends, of her in after her assertion by the retrieval of already
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the United- and retail of delivered goods and ent-stood by the circumstance is, that they do not have significant amounts of heat can slippers ver-buy. It has an order that the defendant pay a loading Treaty amounting to 107.434,50 €, seeking a declaration of the commitment of the defendant th to payment of further compensation and reimbursement pretrial costs.
The District Court has the applicant damages for the unsold until the adoption and notification of the injunction thermal slippers in the amount of 9.212,00 awarded € plus interest and dismissed the action, moreover. On appeal by the defendant, the Court of Appeal, in dismissing the appeal of the applicant, the application in its entirety abgewie-sen. With approved by the Court of Appeal revision, whose Zurückwei-sung the defendant contends, pursues the applicant form of order sought further.
Reasons for the Decision:
I. The Court of Appeal has accepted, Hynix has against the defendant no claim for damages pursuant to § 945 Fall 1 ZPO concerning the implementation of the interim Availability checked-supply adopted by the Landgericht Hamburg from 7. December 2010 to. There has executed:
The injunction was correctly adopted and should not have been lifted. The defendant had an injunction pursuant to §§ 8, 3, 4 No.. 9 Buchst. a UWG granted against the applicant. The a heatable grain filling containing slippers the defendants were competitively peculiar because of their inherent design. On Existence of origin deception serious doubts might exist. The product depositors of the parties may be inferred from, that it äuße after-
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reindeer design to identical products IN QUESTION. This assessment is not inconsistent with the injunction annulling judgment of the Landgericht Hamburg from 16. February 2011 nicht entgegen. The on the compensation claim ent-distinctive court does not have the injunction canceling primal part of the disposal process linked to the.
II. The directed against this judgment has revision success. They lead to the repeal of the judgment and remand the case to the Court of Appeal. With the given by the appeal court statement of reasons-tion can not be denied a claim for damages of the applicant against the defendant.
1. That § 945 Fall 1 ZPO the party, one has obtained from the outset unge-justified injunction, bound, to replace the enemy damage, incurs from their execution. The provision of § 945 ZPO is based on the legal concept, that the enforcement of a not yet final Enforcement at the risk of the creditor it-follows (BGH, Judgment of 10. July 2014 – I ZR 249/12, IIC 2015, 196 Rn. 14 WRP = 2015, 209 – Nero).
2. Contrary to the opinion of the court was procured from the loading complained injunction from 7. December 2010 unjustified from the beginning.
a) In case of dispute may be left, whether the injunction already therefore unjustified from the outset in accordance with § 945 ZPO is considered, because the Hamburg Regional Court this available by final judgment from 16. February 2011 has lifted. From a corresponding binding effect the Supreme Court are (RGZ 58, 236, 237; 59, 355, 359) and the Bun-desgerichtshof assumed in earlier decisions (vgl. BGH, Judgment of
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4. December 1973 – VI ZR 213/71, BGHZ 62, 7, 10 f.; Judgment of 20. March 1979 – VI ZR 30/77, BGHZ 75, 1, 5; Judgment of 26. March 1992 – IX ZR 108/91, NJW 1992, 2297; for binding to the request made in the proceedings for judgment BGH, Judgment of 7. June 1988 – IX ZR 278/87, NJW 1988, 3268 f.). The Senate has the controversial issue, whether a decision on summary, by an injunction (formally legally) has been canceled as unfounded, the court in compensation process binds, been left open (vgl. BGH, Judgment of 3. December 1954 – I ZR 262/52, BGHZ 15, 356, 358 f. – Progressive Kundenwerbung; Judgment of 28. November 1980 – I ZR 182/78, NJW 1981, 2579, 2580 WRP = 1981, 269 – Fotoartikel I; Judgment of 7. July 1994 – I ZR 63/92, BGHZ 126, 368, 374 – Fortsetzungsverbot; Judgment of 15. January 1998 – I ZR 282/95, IIC 1998, 1010, 1011 WRP = 1998, 877 – WINCAD). This question should not be decided in case of dispute.
b) Following the adoption of the appeal court, the Landgericht Ham-burg has issued the injunction rightly and wrongly final judicial ruling from 16. February 2011 lifted, because the loading complained of pursued the available methods injunctive relief under § 8 Abs. 1, §§ 3, 4 No.. 9 Buchst. a UWG of the appeal court's view state. That does not withstand legal scrutiny of audit.
aa) The distribution of imitation is according to § 4 No.. 9 UWG competi-werbswidrig, if the counterfeit product competitive characteristic on-exhibits and special circumstances – as an avoidable deceptive mark of origin be--company (§ 4 No.. 9 Buchst. a UWG) or an inappropriate use of off appreciation of the counterfeit product (§ 4 No.. 9 Buchst. b UWG) – draw near, from which follows the unfairness. Here there is a correlation between the degree of competitive characteristic, the manner and intensity of the acquisition and to the special competi-
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commercial circumstances. The greater the competitive characteristic and the higher the degree of acquisition, the lower the requirements to be placed on the be-special circumstances, the unfairness of imitation statement of reasons-to, and vice versa (BGH, Judgment of 28. More 2009 – I ZR 124/06, IIC 2010, 80 Rn. 21 WRP = 2010, 94 – LIKEaBIKE; Judgment of 24. January 2013 – I ZR 136/11, IIC 2013, 951 Rn. 14 WRP = 2013, 1188 – Regalsystem; Ur part of 17. July 2013 – I ZR 21/12, IIC 2013, 1052 Rn. 15 WRP = 2013, 1339 – Shopping Cart III).
bb) A product has competitive characteristic, if the material embodiment or specific characteristics of the product are suitable, to point the interested public to its commercial origin or its specifics-minorities (st. Rspr.; BGH, IIC 2010, 80 Rn. 23 – LIKEaBIKE; BGH, Judgment of 15. April 2010 I ZR 145/08, IIC 2010, 1125 Rn. 21 WRP = 2010, 1465 Femoral part; BGH, IIC 2013, 951 Rn. 19 – Regalsystem; IIC 2013, 1052 Rn. 18 – Shopping Cart III; BGH, Judgment of 22. January 2015 – I ZR 107/13, IIC 2015, 909 Rn. 10 WRP = 2015, 1090 – Exzenterzähne). A He-certificate has no competitive characteristic, where the public transport not the significant design features of the product (more) a be-approved manufacturer or a particular commodity assigns (vgl. BGH, Judgment of 8. November 1984 – I ZR 128/82, IIC 1985, 876, 878 WRP = 1985, 397 – Tchibo/Rolex I; Judgment of 11. January 2007 – I ZR 198/04, IIC 2007, 795 Rn. 28 WRP = 2007, 1076 – handbags; BGH, IIC 2015, 909 Rn. 11 – Exzenterzähne). For the competitive characteristic occurs while not insisting on, whether the traffic the manufacturer of the goods knows by name; required but, that takes the traffic, the product comes from a particular Her-steller, however this may be called, or had been taken by an affiliated with this company on the market (vgl. BGH, Judgment of 15. September 2005 – I ZR 151/02, IIC 2006, 79 Rn. 36 WRP = 2006, 75
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- Jeans I; Judgment of 24. More 2007 – I ZR 104/04, IIC 2007, 984 Rn. 23 and 32 WRP = 2007, 1455 – Gartenliege; BGH, IIC 2015, 909 Rn. 11 – Eccentric teeth).
cc) Whether the Court of Appeal on the issue of competitive self-art of the subject models of Hot Slippers, in the assessment of the degree of fit of the model of the defendant on one side and the challenged embodiment of the applicant on the other side as well as the feature of a preventable origin deception an error of law is un-terlaufen, can be assessed in the dispute solely on the basis of the files located in Fo tomaterials and the description of the parties' products in the judgment of the Landgericht Hamburg in the disposal process. Although unterlie-gen of the judgment by the Court of Appeals pursuant to § 559 Abs. 1 Set 1 ZPO also to the documents Transferred assets, Products and Models, which have been made specifically regarding the appeal court (vgl. BGH, IIC 2007, 795 Rn. 23 – handbags; IIC 2013, 1052 Rn. 31 f. – Shopping trolley III). The appeal judgment containing such a reference to the (Origi-nal-)However, products are not the parties. The Court of Appeals rather exclusively placed its Beur-distribution of the product insert of the parties and the Be-scription of the products by the court of the disposal process zugrun-de. In contrast, the audit did not raise any objections.
dd) The Hamburg Regional Court has the Hot Slippers the defendant described as in his injunction canceling decision, that they are made of fleece, inspired by the shape of a closed slipper. The front of the front of the shoe from the sole ran starting two seams together, thereby the front going emphasized. From the foot opening on the instep there at the “Hot Sox” a transversely running double seam, a kind web fancy. By this Close-
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SSE backwards a horseshoe-shaped foot opening at, which can be stretched over a gum mizug and the foot when wearing fully encloses SSE. It is a removable filled with grains insole in the shoe before-handen, this will held by two Velcro fasteners. This design will give the “Hot Sox” the design of a typical house shoe. It existed already doubts, whether the design of the “Hot Sox” the defendant could ever act forth kunftshinweisend; anyway distinguish an operational nature for legal reasons from, because the defendant has not proved, that of the defendant and the G. ancestral displaced Hot Slippers by a single manufacturer company. An origin deception also differs therefore from, because in the same manner as the “Hot Sox” the defendant th crafted Hot Slippers are provided with different brands. So the defendant pastimes their heat slippers under the brands “Hot Sox”, “Thermo Maxx”, “Pediwarm”, “Pedi-well”, “Thermo Sox” and “Kynast Excl.”. Die G. use the terms “Slippies”, “Monopol-Slippies” and “Kyrotherm Slippies”. Since the relevant public, to which belong the chairman of the chamber, the delivery conditions are not known, and they do not know, that the products would be possibly produced by only one or two Manufacturing Company, would accept, that behind every trade mark is another manufacturing company.
of) The Court of Appeal is the followed. It adopted, so special “Hot Sox” whether the defendant, that although they would look like typical slippers, but none were, but a grain filling enthiel th, which could be heated. They exhibited a typical design on, the Hamburg Regional Court has described in detail. That Körnerpantof-blades always this exterior design had, should not determine. On the market are different configurations to find, said the Internet is-botenen grains slippers predominantly the defendant's change under their-
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various brand names are. Der Umstand, that the defendant with the co-operating G. identical products as the defendant pastimes, does not preclude the adoption, that traffic with the external design of the heat slippers Origin ideas connect. The defendant and the G. would act in cooperation with each other, by the defendant Dis- counter beliefere, while the G. the slippers through pharmacies, Beauty Studios and marketed Christmas markets. For an origin-deception continues not speak of circumstance, that both the defendant and the G. Vertrie grains slippers under various brands- ben. This can not be accepted.
ff) Without success, the revision relies however on, the decor with dark-Terian features of “Hot Sox” the defendants were not suitable for itself, to carry the assumption competitively unique.
(1) Rightly the Court of Appeal in assessing the competi-commercial nature of the defendant's product was not placed on the design of slippers, but it, that the “Hot Sox” the defendant indeed resemble typical slippers, but can not be used as such. As is clear from the second side of the taken by the Appeal Court regarding product depositor the defendant, can not be used to run the Wärmepantof-blades. With them is foot-warmer in external design of a slipper. so you will not be in competition with ordinary slippers, but to other manufacturers' products for heating the feet. The special feature of the product of the Be-accused, the fact, that the “Hot Sox” contain a grain filling, which can be heated with ordinary kitchen appliances and deployed a special warming effect.
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(2) Without success, the revision relies on contrast, that traffic can basically geared only to the external design features of a product (vgl. BGH, Judgment of 7. February 2002 – I ZR 289/99, IIC 2002, 820, 822 WRP = 2002, 1054 – Brems Songs). It is not necessary, that consumers Features, a design of Erzeug-certi- ficate has straight in use, already recognize at first glance (BGH, IIC 2007, 984 Rn. 21 – Gartenliege). The product of the defendant is a foot warmer in the shape of a slipper. This is for the relevant public readily recognizable, because it one of the Were-mespeicherung serving, contains grains with filled chamber in the herausnehmba-ren insole.
(3) Without success of the auditing challenges the assumption of Beru-fung Court, the determined typical design of heat slippers the defendant distinguish these products from other manufacturers. True, the Court of Appeal which is assumed, that aesthetic characteristics of a product can establish its competitive characteristic, if they are prop-nen, delineate it from competitor products. The Re-vision does not deny, that differing designs of Wärmepantof-blades, especially those with socks similar extended shaft, exist. The Court of Appeal has not therefore freely usable product idea the defendant meted a competitive characteristic, but given a suitability as an indication of origin in Produktbe-rich heat slippers external design of the defendant product.
(4) Wrongly makes the revision contends, that the design features employed by the defendant are public domain technical features. Technically necessary features, which have to be used necessarily for similar products from tech-technical reasons, can of law-
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reasons not create competitive characteristic. The acquisition of such – or no longer standing under special legal protection – Shaping features is competitive unobjectionable with regard to the principle of free prior art. If, however, not technically necessary features, but only to those, although for technical reasons, but are freely interchangeable, without thereby sacrificing quality are ver-linked, can a competitive characteristic (With)justify, provided that the transport sets for these features on the origin of products from egg-nem certain business value or with them connects certain Qualitätser-expectations (st. Rspr.; BGH, IIC 2010, 80 Rn. 27 – LIKEaBIKE; IIC 2013, 951 Rn. 19 – Regalsystem; IIC 2013, 1052 Rn. 18 f. – A-III shopping carts). As far as the revision argues, the outer shape of Wär-mepantoffeln, which is particularly prevalent in sports shoes and other slippers, is conditioned and required by the anatomy of the foot, to give a bit of comfort to the feet, ignored them, that heat slippers can not be used while running in the home, but are not appropriate because of the existing grain filling. The product of the defendant only serves, to warm cold feet, and supported when sitting or lying. For this is an external design in the form of a sports- or slipper technically not required.
gg) However, the audit criticizes successful acceptance of Beru-fung Court, the features and design of the product of the defendant were despite the different brands, under which they are placed on the market, suitable, to enable the transport a conclusion on his betriebli-che origin.
(1) The Landgericht Hamburg is available method of out-addressed, that it is the relevant public to the Endverbrau-
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cher acts and that this will take, behind every trade mark is an at-other manufacturers. That would be such an assessment inaccurate, has not found the Berufungsge-report. On this basis is missing for its adoption, the Ver-operating identical products under different brand names does not preclude the An-acceptance of traffic, heat slippers were from a single manufacturer or interconnected companies, the tatsächli-che basis. If identical products under different manufacturer brands and at various prices offered, consists – if it is in the relevant public to the final consumer – regelmä-larly, no reason, that the products from the same manufacturer. Since it is the function of the mark, to guarantee the traffic has the same origin of the product which it covers (st. Rspr.; vgl. BGH, Be resolution dated 9. July 2015 – C Eg 65/13, IIC 2015, 1012 Rn 10 WRP = 2015, 1108 – Nivea Blau), the traffic is rather accept, indicate that different brands have a different commercial origin of the corresponding ge-featured products.
(2) Although it may be for the adoption of a competitive characteristic un-harmful, if the traffic due to various indicator assumes, it was stated that the contested product to a new series or a second brand of the original manufacturer or it existed for him at least-royalty- or socio-contractual relations. Whether this assumption in particular dispute is justified, but depends on the tatrichterlichen Wür-evaluating the relevant circumstances of each case (vgl. to preventable Her-future illusion BGH, Judgment of 19. October 2000 – I ZR 225/98, IIC 2001, 443, 445 f. WRP = 2001, 534 – Viennetta; Judgment of 2. April 2009 – I ZR 199/06, IIC 2009, 1073 Rn. 15 WRP = 2009, 1372 – Boning). The Landge-court Hamburg is assumed, that the targeted public behind each brand suspected another Manufacturing Company. deviant has
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not found the appeal court. But the dispute also nothing ersicht-lich. The revision reply, contrary also not raised.
(3) After that is excluded, that the targeted Endverbrau-cher the various brands, with those of the defendant and the G. displaced Hot Slippers are marked, as trade- regarded brands, behind which a manufacturer is (vgl. this BGH, Judgment of 2. April 2009 – I ZR 144/06, IIC 2009, 1069 Rn. 16 to 18 WRP = 2009, 1505 – garlic sausages; BGH, IIC 2015, 909 Rn. 14 – Exzenterzähne). That finding is supported from the Senate decision “Gartenliege” (IIC 2007, 984). In there case decided the applicant had delivered their Gartenliege smaller suppliers, who had driven the sun under their own brand or as Eigenpro-products. This did not happen in large numbers and was therefore unsuitable, to influence the view of traffic sufficiently. The fact, that the local defendant had distributed in several aufei-nanderfolgenden years in its numerous branches, standing in dispute sunbeds under their own brand, was not contrary to the assumption, that the targeted public, given the pro-duktmerkmale used hereby joined Origin ideas. According to the local case relevant findings it was for significant segments of traffic near to adopt, the defendant marketing the product from other manufacturers (BGH, IIC 2007, 984 Rn. 26 f. – Gartenliege). That in case of dispute there is a ver-rable facts, the Court of Appeal just not Festge-is and is not to be assumed.
c) An injunction under § 8 Abs. 1, §§ 3, 5 Abs. 2 UWG also be-is not. That § 5 Abs. 2 UWG is a commercial transaction mistaken-leader, when in connection with the marketing of goods or services including comparative advertising one of confusion-
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causing danger to another product or service or the trade mark or egg-nem other indicator of a competitor. This is in case of dispute, only be launched, if the consumers in spite of the multi-number of brands, under which the disputed products are original Vertrie-ben, out solely on the basis of external matching features thereof, these were from a manufacturer or from the production-interconnected companies. That's just not the case. The for revision-onserwiderung shows to the contrary is also not on.
III. The Court of Appeal can not stand afterwards; it should be repealed. Since the matter is not ripe for final decision, is it for a new hearing and decision, auch über die Kosten der Revision, referred back to the Court of Appeal. For the further procedure is made aware of:
1. Since the defendant has conceded no to the interim injunction rechtfer-term Direction injunctive, is of a basically existing compensation claim of the applicant in accordance with § 945 Fall 1 ZPO auszugehen.
2. The Court of Appeal will therefore have to consider, whether the applicant is entitled to a claim for damages in the amount alleged by her.
a) It can damage the applicant because of the already delivered by the Rückho-lung heat slippers from the single- and wholesale costs incurred contrary to the view of the District Court be denied not vornhe-pure.
aa) The obligation to abstain from an act, by a continuing failure state was created, must be interpreted as meaning unless otherwise regularly clues, that they not only Unterlas-
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tion of such acts, but also includes the making of possible and to-mutbarer actions to remedy the fault condition (BGH, Judgment of 28. January 1977 – I ZR 109/75, IIC 1977, 614, 616 – Gebäudefas-zade; vgl. BGH, Judgment of 18. September 2014 – I ZR 76/13, IIC 2015, 258 Rn. 63 f. WRP = 2015, 356 – CT paradise; Judgment of 30. July 2015 – I ZR 250/12, WRP 2016, 331 Rn. 28 f. – Piadina recall).
bb) The applicant was from by the injunction from the Landgericht Hamburg 7. December 2010 been banned, their heat slippers on-Zubiete, to apply, import and / or place on the market. In compliance with this prohibition, the applicant was not only committed, adjust the further marketing of its unsold Hot Slippers. It was up to her well, already to the United- call back to and retail selling Hot Slippers.
b) The Court of Appeal will have however to consider, whether the applicant by the unjustified injunction of the Landgericht Hamburg from 7. December 2010 because of the recall of already delivered goods pos-SHORT- therefore not in accordance with § 945 ZPO arose irreplaceable damage, because she was obliged for other reasons to recall.
aa) The applicant had been prohibited by the injunction of the Landgericht Oldenburg dated the same day, to use in their product inserts the picture of the defendant. This prohibition not only committed to the principles mentioned above, to refrain from the use of the photos in the future. She had to take under-also make reasonable efforts to, to ensure, that the product insert is replaced with already-ausgelie-buffered goods.
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bb) If this obligation would have resulted, must they have already delivered Hot Slippers recall, would you not in the recall costs of existing damage eligible for compensation. A pursuant to § 945 ZPO irreplaceable damage has not occurred, if the obligation is anyway mate-Riell-law through the enforcement of a judgment given unjustified injunction Affected, to refrain from him by the interim order untersag th behavior (vgl. BGHZ 15, 356, 358 f. – Progressive customer advertising; BGHZ 126, 368, 374 f. – Fortsetzungsverbot; BGH, Judgment of 20. July 2006 – IX ZR 94/03, BGHZ 168, 352 Rn. 27). In such a case, this does not remove the causality between the enforcement of the injunction and the setting is prohibited behavior, for that matter only to the real primal thing of establishing liability event excluding Er-set causes (vgl. BGHZ 168, 352 Rn. 22). However, a replacement of the incurred by full-evasion unjustified injunction fortune-gens loss separates normative reasons (vgl. Fischer in Prüt-ting/Gehrlein, Code of Civil Procedure, 7. Ed, § 945 Rn. 11; Ahrens / Ahrens, The competition process, 7. Ed, Get. 62 Rn. 29). A person concerned is to obtain compensation by way of damages-and Damages no cost, which would be incurred even if legally compliant behavior of the tortfeasor definitely (vgl. BGHZ 15, 356, 359 – Progressive Kundenwerbung; BGH, Judgment of 28. January 1986 – VI ZR 151/84, NJW 1986, 1486, 1487; BGH, WRP 2016, 331 Rn. 15 – Piadina recall).
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cc) The defendants Schädigerin burden of proof for, would that the applicant relied for the goods as a result of the recall damage adopted by the Landgericht Oldenburg injunction also ent-standing, if the injunction of the Landgericht Hamburg from 7. December 2010 would not be issued. The tortfeasor bears the burden of proof, that the damage – in its entirety – would have occurred even in lawful conduct (vgl. BGH, Judgment of 15. March 2005 – VI ZR 313/03, NJW 2005, 1718, 1719).

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