Limits to Legal Business Enquires by Fax and eMail

The BGH published two golden rules in two different decisions when businesses want to “cold contact” potential customers on July 17, 7 2008 (I ZR 75/06 - Royal Cars and I ZR 197/05 - FC Troschenreuth).

The first case is about a car dealer that sent a fax to a Toyota store showing his interest to immediately buy three different Toyota models. The second is about a provider for online soccer games that emailed a smaller soccer club to enquire the possibility to place an ad banner on their homepage in trade for a share in turnover.

According to §7 II no. 3 UWG, advertisement vial eMail or fax is considered as an unreasonable bother and therefore as unfair competition when sent without (previously given or reasonably assumable) consent of the recipient. The statute does not distinguish between private or business addressees. One’s desire for protection is not touched when unsolicited enquiries for offers of one’s business, i.e. products or services needed to run your business are indirectly beneficial for your turnover.

Therefore, the court had to decide if the recipient of the mail would reasonably permit such enquiry. The BGH stated that publically publishing one’s contact details (e.g. on one’s homepage) contains the permission to contact this company for the purpose of initiating normal business of the recipient.

The court held that contacting Toyota was legal as the intention was to initiate the typical business of Toyota. The car dealer wanted to buy cars and therefore the permission to use the contact details can be expected. On the other hand, the permission for using the contact details of a private soccer club when offering paid advertising banners was considered as a bother and therefore unfair competition. The offer for paid advertisement does not belong to the typical business of a soccer club and especially the eMail address was not determined to be usable for the business matters of the sender.