Unclose-able pop-up download offers on a website were a pain for punters, but how could they entitle the website’s competitor to recover damages? Germany’s competition laws surprise again.
Who: Peepphone.de and Peepphone.info
Where: The Dûsseldorf Regional Court
When: Summer 2003
Germany’s widely drawn unfair competition laws showed once again just how technologically neutral they are in this recent decision. The proceedings were between two competing websites offering erotic services involving telephone sex in combination with webcams.
What caused the problem was pop-up ads on the defendant’s website Peepphone.info. Site visitors were presented with a prompt offering a download of software, but if they rejected this six to eight new windows appeared with constantly changing content. New windows appeared if any attempt was made to close these and the only way of bringing the process to an end was by closing the browser.
The unfair competition proceedings were brought by competitor Peepphone.de. They were not directly affected by this practice at all, but complained that Peepphone.info’s annoying pop-up ads put unfair pressure on consumers, were anti competitive and thereby indirectly caused Peepphone.de damage.
The Court agreed with Peepphone.de’s claims, and it seemed it was particularly because of the similarity of the domain names and the consequentially very tight competition between the two parties that it not only ordered Peepphone.info to desist from the practice but also awarded Peepphone.de 10,000 Euros damages for loss of business.
Why this matters:
It is difficult to see that any similar action brought in the UK would have the remotest prospects of success, although the new Enterprise Act does give consumer bodies the possibility of making a super complaint to the Office of Fair Trading about any conduct which is detrimental to the interests of consumers. However, this still does not offer a convenient and fast moving way in which those guilty of clearly abusive practices can be made to pay the price in terms of damages. It is also worth noting in passing that because this advertising appeared on Peepphone.info’s own website, it would not be caught by our CAP code of Advertising, Sales Promotion and Direct Marketing.