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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Advertising, Internet, Telecoms & Broadband Anthonia Ghalamkarizadeh

Part II of the AdBlock Plus trilogy – Munich court says no infringement

A few weeks ago, we reported on the decision of the Hamburg District Court in the ongoing adblocking litigation concerning the software AdBlock Plus of Eyeo GmbH. Yesterday, the District Court of Munich followed suit, dismissing all claims brought by subsidiaries of RTL und ProSiebenSat.1 Digital. The judges found that the relationship between Eyeo’s business and that of the media houses is not sufficiently close to amount to a competitor relationship under the German Unfair Competition Act. Beyond that, the court held that Eyeo does not willfully interfere with the advertising business of the media houses. Rather, it is the users’ own free choice whether or not they want to block any advertising from the websites operated by the claimants.

Copyright and antitrust claims were also dismissed by the Munich court. The mere browsing of a website, while using an adblocker, does not amount to an act relevant to copyright, the judges said. And Eyeo does not – yet – hold a dominant market position. The court defined the relevant market segment according to Eyeo’s definition, covering all internet users. On this broadly defined market, Eyeo’s AdBlockPlus only holds a share of some 3 percent. In contrast, the claimants had based their calculations on that part of the population using an adblocking software. Among these users, Eyeo holds a share of more than 30 percent, the claimants contend.

When they proclaimed the judgment yesterday, the judges only elaborated briefly on the grounds on which their decision rests. Should the fully reasoned judgment eventually be published – which is not a matter of course in Germany – we may gain further insights into the judges’ deliberations. We can also expect the exchange of arguments to continue at the appeal stage. Furthermore, another stage is set in Cologne, where the District Court yet has to render judgment in the action brought by Axel Springer.