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The life of others

Industrial property law

The life of others

The most famous Italian woman in the world is neither Sofia Loren nor Mona Lisa (La Gioconda), but Chiara Ferragni. Should older readers doubt this statement - as originally did the author of this article - it is suggested that they ask their own children.What is Ms Ferragni by profession? Singer? Actress? Nobel Prize winner? No, an influencer with over 25 million followers.

How an "influencer" is to be legally classified has not yet been conclusively clarified by both legal systems. However, on 9 September 2021 (I ZR 90/20, 125/20, 126/20), the Federal Supreme Court (BGH) had cause to decide legal disputes with three defendant German female influencers (including Cathy Hummels, the wife of a national player who is quite well-known in Germany) from a competition law perspective. Insofar as their performances, which attract young people in particular, refer to products which the user can click on and thus find out where he can buy them, this is nothing other than advertising. Pursuant to Section 5(6) UWG, a person acts unfairly if he fails to disclose the commercial purpose of a commercial act, unless this purpose is immediately apparent from the circumstances, and the failure to disclose is likely to induce the consumer to take a transactional decision that he would not otherwise have taken. The influencer who advertised other companies' products in this way was ordered to label them as such; commercial! In the case of the other influencers who clearly advertised their own products (including Ms Hummels), the BGH did not see any deception.