Facts
The plaintiffs A. AG, E. AG, B. AG, C. AG and D. AG operate online platforms on which they publish real estate advertisements. The defendant Z. AG systematically searches the plaintiffs' platforms for current real estate advertisements in order to then offer them on its own online platform. The plaintiffs saw this as an unfair impairment of their brokerage services. The Federal Supreme Court dismisses the plaintiffs' appeal. It concludes that the defendant does not take over and exploit the plaintiffs' advertisements without appropriate own effort, as required by Art. 5 para. 1 lit. c UWG. There is also no exploitation of third-party services within the meaning of Art. 2 UWG, as the plaintiffs have not substantiated their own effort for the creation of the advertisements. The systematic search and takeover of the advertisements by the defendant is not unfair as such.Considerations
According to Art. 2 UWG, conduct is only unfair if it is objectively suitable to influence competition or the functioning of the market. Pursuant to Art. 5 lit. c UWG, in particular, anyone who takes over and exploits the market-ready work result of another without appropriate own effort through technical reproduction processes is acting unfairly.
The lower court correctly found that the defendant's effort for the takeover and exploitation of the plaintiffs' advertisements is not so disproportionately low that an unfair direct takeover is…