The plaintiff, an Irish low cost carrier, exclusively sells tickets through its own website or its call center in order to keep the fares low and avoid customers being charged with any service fees by third parties. To book a flight on the website it is required to accept the carrier’s General Condtions of Contract. These General Condtions of Contract explicitly exclude travel agents or other professional sellers from booking.The defendant, a Dutch online travel agent, offers flight tickets on his website. If a customer chooses a fligth operated by the plaintiff, the defendant passes on the customer’s data to the plaintiff’s website and finalizes the booking there. The customer is charged with a service fee in addition to the plaintiff’s air fare.The plaintiff filed a cease and desist claim arguing this practice constituted unfair competition. The German Oberlandesgericht (OLG) Hamburg granted the claim: the court held that the plaintiff had a legitimate interest to exclude agents and other travel sellers from booking. The defendant had acted in bad faith when accepting the plaintiff’s General Conditions of Contract at each booking and at the same time ignoring the provision which excludes travel agents from booking.However, the OLG Hamburg allowed further appeal to the Supreme Court (BGH).Case details: OLG Hamburg, judgement 5 U 38/10 od 24. Oct. 2012
