According to Section 89 b HGB, the commercial agent can demand appropriate compensation after termination of his contractual relationship with the commercial enterprise. If the commercial agent has acquired customers for the commercial enterprise, he receives a commission for this service. However, if the agent leaves the company even though the new customers enter into a contractual relationship with the commercial enterprise, the commercial agent would not receive his commission. Section 89 b HGB is intended to compensate for this imbalance if the payment of compensation is equitable.
§ However, Section 89 b HGB is not only applicable to commercial agents within the meaning of the HGB. Rather, case law has applied § 89 b HGB analogously to a number of other contractual relationships, e.g. commission agents, authorized dealers and franchise agreements.
However, in the opinion of the Hanseatic Higher Regional Court, the compensation claim cannot be asserted in the case of pure trademark license agreements. A pure trademark license agreement exists if the licensor does not manufacture its own products. Instead, the licensor licenses the trademark to a manufacturer who provides its products with the trademark.
The Higher Regional Court of Hamburg rejected the analogous application of Section 89 b HGB because the requirements for the applicability of Section 89 b HGB were not met.
- Sales agency ratio
First of all, there must be an intermediary relationship between the parties. In the opinion of the court, this is not the case. A sales intermediary is basically an independent trader who acts as an intermediary for the company or concludes transactions on its behalf. The contractual relationship between the company and the sales intermediary is characterized by elements of an agency agreement; the sales intermediary is bound by instructions and therefore a subordination agreement exists.
However, such a contractual relationship does not exist in the case of a pure trademark license agreement, as the licensee actually manufactures the goods or provides the services itself. It is therefore not in a subordinate relationship with the company, but on a horizontal level with the company.
- Integration
Furthermore, the sales agent must be integrated into the company's sales organization as part of the contractual relationship. This requirement also means that the sales agent must be subordinate to the company. In this respect, its activities are directed towards the sale of the company's product or services. In the case of a trademark license agreement, however, the focus is on securing the function of the trademark, namely the function of origin, differentiation and quality.
- Transfer of the customer base
Ultimately, the sales agent must surrender its customer base upon termination of the contractual relationship or be obliged to do so. However, there is no such obligation when a pure trademark license agreement is terminated. Rather, it can be assumed that the customers of the licensee (= alleged sales agent) will also remain its customers.
Furthermore, the sales agent must have been integrated into the company's sales organization. Finally, after termination of the contractual relationship, the sales agent must be obliged to transfer its customer base or must have transferred the customer base.
The judgment of the Hanseatic Higher Regional Court was issued under file number 3 U 146/06 on November 27, 2008.
