BGH, Judgment of 16 May 2024, Case No. I ZR 45/23
According to the decision of the German Federal Court of Justice (BGH), there was no infringement of the general corporate right of personality or the proprietary components of the corporate right of personality of the owner of an aircraft when, in an advertising photograph, his aircraft with a recognisable aircraft registration marking was depicted alongside the advertised product (in this case, a luxury class vehicle model). The matter has been remitted to the Court of Appeal.
Official Headnotes:
a) The decision as to whether and in what manner distinctive features of personality such as likeness, voice or name are to be made available for advertising purposes constitutes an essential – proprietary – component of the right of personality of natural and legal persons (Article 19(3) Grundgesetz) as well as of commercial partnerships. The basis for tortious liability that may be considered in this regard for infringement of the proprietary component of the general right of personality protected by § 823(1) BGB in its manifestation as the right to one’s own name is that the name is used by the person claimed to be the infringer in a manner that exploits the advertising and image value of the name bearer, for instance by marketing his person as a vehicle for promoting a product or by at least directing the viewer’s attention to the advertised product through the use of the name.
b) In examining whether and in what manner a distinctive feature of personality such as a name is used by third parties for advertising purposes, thereby infringing the proprietary component of the right of personality, the decisive factor is whether a not insignificant part of the addressed public assumes commercial use. The same applies to the assessment of whether a personality feature is used at all. In this respect too, the decisive factor is whether a not insignificant part of the public addressed by the advertising perceives the contested use as the use of a personality feature. The Court of Appeal’s assessment of this question is subject to full review by the Court of Revision (continuation of BGH, Judgment of 24 February 2022 – I ZR 2/21, GRUR 2022, 665 [juris para. 13 and 17] = WRP 2022, 601 – Tina Turner; Judgment of 28 July 2022 – I ZR 171/21, GRUR 2022, 1694 [juris para. 21 and 23] = WRP 2022, 1513 – Reizdarmsyndrom).
c) The remote possibility, according to life experience, that viewers of an advertising photograph showing an aircraft alongside the advertised product (here a car model) might identify the holder of the aircraft through an internet search based on the sequence of letters visible in the photograph but not recognised as a name in itself (here the legally prescribed aircraft registration marking depicted on the tail of the aircraft) does not constitute use of the holder’s name attributable to the advertiser.
The judgment of the BGH is published here.
