CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 17006/90                       by K.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 May 1990 by K. against the Federal Republic of Germany and registered on 9 August 1990 under file No. 17006/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows: THE FACTS           The applicant, a German citizen born in 1946, runs a dance school in Ludwigshafen.   He is represented by Mr.   Ludwig Ose, a lawyer in Ludwigshafen.           On 18 May 1989 the Frankenthal Regional Court (Landgericht) gave judgment against the applicant at the request of a competitor ordering the applicant to no longer use the slogan "Die Ludwigshafener Tanzschule" ("The Dance School of Ludwigshafen)" in his publicity.   In the opinion of the Court the use of the article "die" ("the") in the slogan was misleading.   Firstly, it gave the impression that there was only one dance school in Ludwigshafen, and it could convey the idea that the applicant's school was of particular importance and quality.   The applicant had, however, not offered any proof to that effect.           The applicant's appeal (Berufung) was rejected by the Court of Appeal (Oberlandesgericht) in Zweibrücken on 9 August 1989.           A constitutional complaint (Verfassungsbeschwerde) was rejected on 6 November 1989 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) partly as being inadmissible and partly as offering no prospects of success.   The Court states in its decision that the ordinary court's findings as to how the applicant's advertisement could be understood by the reader were not objectionable.   Furthermore there was no violation of the principle of proportionality as the applicant remained free to advertise his school in various other ways without using terms that were likely to convey a misleading idea.   The right to freedom of expression was also not violated as the interference complained of was based on a statutory provision (Sec. 3 of the Unfair Competition Act (Gesetz gegen unlauteren Wettbewerb, UWG)) and served the protection of consumers against misleading publicity.   In a case where information served the sole purpose of passing a commercial message to prospective customers, the statutory provisions on unfair competition prevailed over the right to freedom of expression.     COMPLAINTS           The applicant considers that the German courts misinterpreted the publicity slogan used by him.   He states that publicity slogans similar to the one objected to by the German courts in his case were currently in use.   For that reason, and also in view of the fact that his competitor's publicity was likewise objectionable, there had been no necessity for the judgment against him.   The applicant alleges a violation of Article 10 of the Convention.     THE LAW           The applicant, who was forbidden by the competent national courts to use the slogan "The Dance School of Ludwigshafen" in his publicity, complains of an interference with his right to impart information as guaranteed under Article 10 (Art. 10) of the Convention.         Article 10 para. 1 (Art. 10-1) provides:           "Everyone has the right to freedom of expression.   This         right shall include freedom to hold opinions and to receive         and impart information and ideas without interference by         public authority and regardless of frontiers.   ..."           However, interferences with this right are compatible with the Convention when they fulfil the requirements of paragraph 2 of Article 10 (Art. 10-2) which provides:           "2.   The exercise of these freedoms, since it carries with         it duties and responsibilities, may be subject to such         formalities, conditions, restrictions or penalties as are         prescribed by law and are necessary in a democratic society,         ..., for the protection of the reputation or rights of others,         ... ."           The Commission first considers that there has been an interference with the applicant's right under Article 10 (Art. 10).           As to the requirements set out in paragraph 2, the applicant does not dispute that the interference complained of is based on domestic law and serves the purpose of protecting the rights of others.   The Commission notes in this context that the aim of the Unfair Competition Act is the protection of the rights of business firms against unfair practices by competitors and also the protection of the rights of consumers.   This is a legitimate aim under Article 10 para. 2 (Art. 10-2) which refers to the protection of the rights of others in a democratic society (No. 7805/77, Dec. 5.5.79, D.R. 16 p. 68 [73]).           The applicant mainly disputes the necessity and proportionality of the measure in question, alleging that slogans similar to the one objected to by the German courts in his case are currently in use in commercial advertisements.   Further he submits that the publicity of his competitor, who obtained the judgment of 18 May 1989 against him, is at least as objectionable as his own.           According to the case-law of the European Court of Human Rights the Contracting States have a certain margin of appreciation in assessing the existence and extent of the necessity of an interference. Such a margin is, according to the Court, essential in commercial matters and in particular in the area of unfair competition.   The supervision by the Convention organs in this respect is therefore limited to the question whether the measures taken at national level are justifiable in principle and proportionate (Eur.   Court H.R., Markt Intern judgment of 20 November 1989, Series A no. 165, at p. 20, para. 33).   In order to establish whether the interference complained of was proportionate it is necessary to weigh the requirements of the protection of the rights of others against the publication of the information in question.   The Commission must look at the infringed court decisions in the light of the case as a whole (Markt Intern judgment, loc. cit., para. 34).           In the present case the national courts found that the slogan used by the applicant in his publicity was misleading.   Its formulation conveyed the impression that the applicant's dance school   was of particular importance.   The Federal Constitutional Court, weighing the requirements for the protection of the rights of others in the area of commercial competition against the publication of the applicant's commercial message, denied a violation of the principle of proportionality.         In these circumstances it cannot be found that the decisions of the civil courts in the present case, confirmed from the constitutional point of view by the Federal Constitutional Court, went beyond the margin of appreciation left to the national authorities.           The Commission therefore concludes that there is no appearance of a violation of Article 10 (Art. 10) and the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)